Appeal 2007-2825
Application 10/262,036
1 Facts relevant to a determination of obviousness include (1) the scope
2 and content of the prior art, (2) any differences between the claimed
3 invention and the prior art, (3) the level of skill in the art and (4) any
4 relevant objective evidence of obviousness or non-obviousness. KSR,
5 82 USPQ2d at 1389, Graham, 383 U.S. at 17-18.
6 A person having ordinary skill in the art uses known elements and
7 process steps for their intended purpose. Anderson's-Black Rock, Inc. v.
8 Pavement Salvage Co., 396 U.S. 57 (1969) (radiant-heat burner used for its
9 intended purpose in combination with a spreader and a tamper and screed);
10 Sakraida v. AG Pro, Inc., 425 U.S. 273, 282 (1976) (the involved patent
11 simply arranges old elements with each performing the same function it had
12 been known to perform); Dunbar v. Myers, 4 Otto (94 U.S.) 187, 195 (1876)
13 (ordinary mechanics know how to use bolts, rivets and screws and it is
14 obvious that any one knowing how to use such devices would know how to
15 arranged a deflecting plate at one side of a circular saw which had such a
16 device properly arranged on the other side).
17 An inventor must show that the results the inventor says the inventor
18 achieves with the invention are actually obtained with the invention and it is
19 not enough to show results are obtained which differ from those obtained in
20 the prior art—any difference must be shown to be an unexpected difference.
21 In re Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972). See
22 also In re Geisler, 116 F.3d 1465, 1469-70, 43 USPQ2d 1362, 1365 (Fed.
23 Cir. 1997) (party asserting unexpected results has the burden of proving that
24 the results are unexpected).
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