Tuesday, February 12, 2013

PTAB invokes KSR in Ex parte Keimel

KSR is invoked in Ex parte Keimel :

The Supreme Court has emphasized that “the [obviousness] analysis 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., 550 U.S. 398, 418 (2007).

As noted by the Court in KSR, “[a] person of ordinary skill is also a person of ordinary creativity, not an automaton.” Id. at 421. “The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” Id. at 416.

Applying the KSR standard of obviousness to the findings of fact, we agree with the Examiner that the ordinary artisan would have reasonably found it obvious to diagnose and treat Fabry disease heart damage using the delivery system of Struijker-Boudier as controlled by the enzyme sensors of Martinez. Such a combination is merely a “predictable use of prior art elements according to their established functions.” KSR, 550 U.S. at 417.


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