CAFC finds rubber band fly killer obvious in Conte

Note:

Conte nonetheless points out that the claimed invention and Watkins teach different types of rubber band guns. As Conte correctly observes, the claimed invention uses rubber band itself to whiplash an insect, whereas the rubber band in Watkins is attached to a “pusher element” (or pouch) that catapults a projectile (a pea or a pellet, for example) toward the target. Conte thus argues that the Board erred in relying on Watkins to reject the claimed invention as obvious. We disagree. Watkins expressly teaches that its “pusher element-equipped rubber band” may be replaced with a conventional rubber band. And in any event, “it is not necessary that the inventions of the references be physically combinable to render obvious the invention under review.” In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983). What matters for the purpose of our analysis is that Watkins teaches that the rubber band be affixed to the front of the gun, and in so doing it teaches the only aspect of the claimed invention that does not appear in White. In our view, it would have been obvious to one of ordinary skill in the art to combine the features of White and Watkins and arrive at the invention claimed in the ’288 application. Therefore, the Board’s obviousness rejection is supported by substa tial evidence.