Appeal 2007-3387
Application 10/307,027
OBVIOUSNESS
Under 35 U.S.C. § 103, the factual inquiry into obviousness requires a
determination of: (1) the scope and content of the prior art; (2) the
differences between the claimed subject matter and the prior art; (3) the level
of ordinary skill in the art; and (4) secondary consideration (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, 1741,
82 USPQ2d 1385, 1396 (2007) quoting In re Kahn, 441 F.3d 977, 988,
78 USPQ2d 1329, 1336 (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.’”).
Here, we find that Konagaya teaches an antibacterial composition
comprising an inorganic and/or organic antibacterial agent and a hydrophilic
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