Appeal 2007-2673
Application 10/354,981
of ordinary skill in the art; and (4) secondary considerations (e.g.,
unexpected results). Graham v. John Deere Co. of Kansas City, 383 U.S. 1,
17-18, 148 USPQ 459, 467(1966). “[A]nalysis [of whether the subject
matter of a claim would be obvious] need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR Int’l v. Teleflex, Inc., 127 S.
Ct. 1727, 1740-41, 82 USPQ2d 1385, 1396 (2007) quoting In re Kahn, 441
F.3d 977, 988, 78 USPQ2d 1329, 1336-37 (Fed. Cir. 2006); see also DyStar
Textilfarben GmBH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d
1356, 1361, 80 USPQ2d 1641, 1645 (Fed. Cir. 2006)(“The motivation need
not be found in the references sought to be combined, but may be found in
any number of sources, including common knowledge, the prior art as a
whole, or the nature of the problem itself.”); In re Bozek, 416 F.2d 1385,
1390, 163 USPQ 545, 549 (CCPA 1969)(“Having established that this
knowledge was in the art, the examiner could then properly rely, as put forth
by the solicitor, on a conclusion of obviousness ‘from common knowledge
and common sense of the person of ordinary skill in the art without any
specific hint or suggestion in a particular reference.’”).
Applying the above principles of law, the Examiner has found that
Sharma “discloses continuously treating grain, e.g., alfalfa seeds or wheat,
with an aqueous ozone solution at a time and temperature sufficient to
substantially reduce the presence of E [.] coli, followed by heat treatment”
(Answer 4). The Examiner has also found that the heat treatment taught by
Sharma constitutes the claimed cooking process (id). Moreover, the
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