The recent case of In re Thorpe, 2010-1021 (Fed. Cir. March 8, 2010) concerned the issue of whether the cited references in a 103 rejection were non-analogous art. Judge Gajarsa took the opportunity at oral argument to ask the associate solicitor arguing on behalf of the PTO how broad an examiner’s search field may be. May the examiner search under any tree and under any rock or are there limits? Judge Gajarsa also asked whether the search field is limited to the art that one of ordinary skill in the art would deem appropriate to search. The PTO agreed that the art that one of ordinary skill in the art would look to would limit the field of search in an obviousness determination. [Listen].
You can listen to the entire oral argument here: [Listen].