In 1994, Larry Proctor purchased in Mexico a package of dry beans, which contained beans of various colors and varieties, including yellow beans, which he brought back to the United States. Over the next three years, he planted and harvested the beans and their producing plants.
One of ordinary skill in the art seeking to reproduce (and hopefully improve) the yellow beans that Proctor brought back from Mexico would have done what he did: plant the beans, harvest the resulting plants for their seeds, planting the latter seeds, and repeat the process two more times.There is no indication that in taking these steps, Proctor sought to provide beans of the particular narrow range of yellow that the claims specified. To the contrary, it appears that all Proctor was attempting to do was to reproduce the yellow beans he had acquired in Mexico, and hopefully to improve them.To do so, he followed normal and well-established agricultural methods and techniques for doing that. See KSR Int'l v. Teleflex, 550 U.S. 398, 418 ("a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.")* * *In KSR, 550 U.S. at 421, the Supreme Court pointed out that "rigid preventative rules that deny fact finders recourse to common sense, however, are neither necessary under our case law nor consistent with it." To reject the Board's obviousness ruling here, would be to deny the Board that very "recourse to common sense" that the Supreme Court there warned against.