         NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                  ______________________

            IN RE: DARYL DAVID COUTTS,
                        Appellant
                 ______________________

                        2017–2458
                  ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 11/836,293.
                  ______________________

                   Decided: April 6, 2018
                  ______________________

      DARYL DAVID COUTTS, Calgary, Alberta, Canada, pro
se.

    NATHAN K. KELLEY, Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA, for
appellee Andrei Iancu. Also represented by SARAH E.
CRAVEN, THOMAS W. KRAUSE, LORE A. UNT.
                ______________________

      Before DYK, WALLACH and CHEN, Circuit Judges.
PER CURIAM.
    Daryl David Coutts filed U.S. Patent Application No.
11/836,293 in August 2007. The Examiner at the United
States Patent and Trademark Office rejected all pending
claims (claims 20–24 and 27–30) of the application for
2                                            IN RE: COUTTS




obviousness over three pieces of prior art: U.S. Patent
Application No. 2004/0061716 (Cheung) in view of U.S.
Patent Application No. 2007/0101289 (Awada) in further
view of U.S. Patent Application No. 2002/0152220 (Kang).
The Examiner found that Cheung disclosed all but two
limitations of the rejected claims, that Awada and Kang
supplied those two limitations, and that a person of
ordinary skill in the art would find the rejected claims
obvious in light of Cheung in combination with Awada
and Kang. The Patent Trial and Appeal Board (the
Board) affirmed the Examiner’s rejections, and main-
tained its decision on rehearing.
    Mr. Coutts contends on appeal that the Board’s obvi-
ousness decision is flawed because Cheung’s inventors
had knowledge of a program that contained the missing
claim limitation disclosed in Kang but did not disclose
that feature in their patent application.
    We find this argument unavailing. The Board correct-
ly found that the 35 U.S.C. § 103 (2012) obviousness test
is not controlled by what a prior art inventor would have
done based on the teachings of the references or anything
else. Instead, the relevant inquiry is what a hypothetical
person having ordinary skill in the art would find obvious
based on the teachings of the references. In applying this
standard, we find that the Board correctly affirmed the
Examiner’s rejection.
                      BACKGROUND
                     A. Technology
    In August 2007, Mr. Coutts filed for a patent on
an invention to “computerized methods and systems
for displaying information on a user’s computing
device.” US Patent Application No. 11/836,293 (’293
Application) [0003]. The claimed software program
compiles and chronologically lists notifications from
various software applications in one display location
IN RE: COUTTS                                              3



and also allows the user to easily access the software
application corresponding to a particular notification
(e.g., with a click). Id. at [0007].
    Claim 20 is the only independent claim and is repre-
sentative of Mr. Coutts’s claims:
   20. A method of handling notifications to a user of
   a computing device, comprising, the method im-
   plemented in a first application program execut-
   ing on the computing device, the method
   comprising:
   receiving a first notification from a second appli-
   cation program and responsive to receiving the
   first notification, integrating a first headline into
   a sequence of headlines wherein the first headline
   corresponds to the first notification and wherein
   the first headline comprises a first time indication
   and wherein the first time indication is based on
   the time when the first notification is received and
   wherein the first headline comprises at least five
   characters;
   receiving a second notification and responsive to
   receiving the second notification, integrating a
   second headline into the sequence of headlines,
   wherein the second headline corresponds to the
   second notification and wherein the second head-
   line comprises a second time indication and
   wherein the second time indication is based on the
   time when the second notification is received and
   wherein the second headline comprises at least
   five characters;
   receiving a third notification and responsive to re-
   ceiving the third notification, integrating a third
   headline into the sequence of headlines wherein
   the third headline corresponds to the third notifi-
   cation and wherein the third headline comprises a
4                                              IN RE: COUTTS




    third time indication and wherein the third time
    indication is based on the time when the third no-
    tification is received and wherein the third head-
    line comprises at least five characters;
    displaying the sequence of headlines in a first
    window on a display associated with the compu-
    ting device, the displaying such that the headlines
    with later time indications are displayed above
    headlines with earlier time indications in the
    plane of the display and wherein the displaying is
    such that the first, second and third headlines are
    visible in the first window and wherein the dis-
    played sequence of headlines is scrollable by the
    user; and
    receiving a plurality of indications of user interac-
    tion with the displayed sequence of headlines and
    responsive to reception of a first indication of user
    interaction with the first headline, signaling the
    second application program wherein the second
    application program responds to the signaling by
    causing a second window to be displayed on the
    display by an application program other than the
    first application program and wherein the second
    window is displayed in a different area on the dis-
    play than the first window and wherein the dis-
    played sequence of headlines is still visible.
Appx17–18. 1
                  B. Prior Art Rejection
    The Board affirmed the Examiner’s rejection of the
pending claims under § 103 for obviousness over Cheung
in combination with Kang and Awada. SAppx003–007.



    1  “Appx” refers to the appendix filed by Appellant,
and “SAppx” refers to the appendix filed by Appellee.
IN RE: COUTTS                                             5



    Cheung teaches a central notifications management
program that “present[s] and manag[es] notifications and
alerts from a plurality of different sources in a consistent
and uniform format.” U.S. Patent Application No.
2004/0061716, Abs. Cheung teaches generating a central,
scrollable list of alerts and notifications from different,
independent sources. Id. at ¶¶4, 28–29, 33, 35. If a user
clicks on a link in the list, the program responds by caus-
ing a second window to open, for example to launch a
second program such as a web browser related to the
notification. Id. at ¶¶30, 35, 46, Figs. 5A, 8C. Reminder
notifications of meetings or to-do items are displayed with
their deadlines, in order of the deadlines. Id. at Fig. 5A;
¶ 35.
    The Examiner found that Cheung teaches all ele-
ments of Claim 20, except for two: the non-overlapping
display windows and the time-received display limita-
tions. SAppx003–007. The Examiner found that Awada
teaches the non-overlapping display windows limitation
and articulated a motivation for a person of ordinary skill
to modify Cheung with Awada. SAppx005. The Examin-
er also found that Kang teaches the time-received display
element of Claim 20 because Kang’s system identifies
messages by the time and date of receipt or transmission
and lists this information along with the title of an email
message or a part of an SMS message. SAppx005–006;
U.S. Patent Application No. 2002/0152220 ¶¶31, 32, 36,
Figs. 2–5. Mr. Coutts does not dispute these findings.
    The Examiner further found that it would have been
obvious to a person of ordinary skill at the time of the
invention to include Kang’s teachings in the Awada-
modified Cheung interface in “an effort to assist [the] user
in organizing and managing notifications.” SAppx006.
This is the finding that Mr. Coutts contends was incor-
rect.
6                                             IN RE: COUTTS




    For dependent claims 21–24 and 27–30, the Examiner
evaluated the additional limitations of each claim inde-
pendently, and found that the additional limitations
recited in claims 21–24 and 28–30 were disclosed by
Cheung and that the additional limitation in claim 27 was
disclosed by Kang. SAppx006–007.
    As such, the Examiner rejected claims 20–24 and 27–
30. SAppx003.
                  C. Procedural History
    Following the Examiner’s rejection, Mr. Coutts ar-
gued to the Board that, at the time of Cheung’s invention,
Cheung’s inventors knew of the feature of displaying a list
of messages with corresponding receipt time indications,
did not claim the feature in their patent application, and
therefore, the combination of Cheung and the feature
could not have been obvious. Appx38.
    Specifically, Mr. Coutts argued that Cheung had ei-
ther actual or constructive knowledge of the chronological
feature because: (1) Cheung described his system using
the program Microsoft Outlook®, which at the time in-
cluded the feature of displaying a list of email messages
chronologically with receipt time indications; (2) a refer-
ence in the Information Disclosure packet for the Cheung
application included an image of the Microsoft Outlook®
inbox with the list of email messages displaying according
to corresponding receipt time indications; and (3) Cheung
was a technology worker developing user interfaces for
messaging and notification systems and would have used
an email program to communicate with his co-workers
IN RE: COUTTS                                             7



that listed email messages with receipt time indications.
Appx38–39. 2
     Mr. Coutts argued that Cheung’s likely knowledge of
the option of displaying messages chronologically meant
that “if it was obvious to Cheung to display a receipt time
indication on his notifications he surely would have
included such.” Appx39. Mr. Coutts supported his argu-
ment by citing to dicta in In re Kleinman, stating that “it
might very well be a significant point in weighing the
content of a patent as a reference if it can be demonstrat-
ed that an inventor had actual knowledge of relevant art.”
484 F.2d 1389, 1392 (CCPA 1973).
    The Board explained that the “the test for obviousness
is not what Cheung would have done based on the teach-
ings of Kang (or even Microsoft Outlook®). Rather, the
test is what one of ordinary skill in the art would have
done based on the combined teachings of the references.”
Appx11. Since, by Mr. Coutts’s own admission, numerous
examples existed of programs that organized notifications
chronologically by receipt date and time at the time of the
’293 Application invention (e.g., Microsoft Outlook®, Kang,
Fig. 1B of the ’293 application depicting prior art that the
invention improved upon), “displaying messages or other
information based upon date or time ordering seems to be
a conventional technique.” Id. The Board found that
Cheung’s lack of any discussion as to displaying notifica-
tions by receipt time indication for Cheung’s own inven-
tion was not relevant to the question of whether using
such a conventional technique would be obvious. Appx11.
Accordingly, the Board affirmed the Examiner’s rejection.




   2    Mr. Coutts made the same points during prosecu-
tion of the patent, but the Examiner still rejected the
claims. Appx39.
8                                                IN RE: COUTTS




    Mr. Coutts then filed a Request for Rehearing with
the Board, and the Board denied the request. In its
denial decision, the Board more fully evaluated In re
Kleinman and found that “while Kleinman . . . noted that
the inventor’s knowledge of the relevant art ‘might very
well be a significant point in weighing the content of a
patent as a reference,’ . . . [w]e do not find that is the case
here.” Appx15.
    Mr. Coutts now appeals the Board’s decision.
    We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A)
(2012) and review the Board’s findings for reversible
error. In re Watts, 354 F.3d 1362, 1369 (Fed. Cir. 2004).
Whether an invention would have been obvious is a legal
conclusion based on underlying factual findings. Graham
v. John Deere Co., 383 U.S. 1, 17–18 (1966). The scope
and content of the prior art are questions of fact. Id.; In
re Mouttet, 686 F.3d 1322, 1330 (Fed. Cir. 2012). This
Court upholds fact findings made by the Board that are
supported by substantial evidence, 5 U.S.C. § 706(2)(E),
and reviews the Board’s legal conclusions de novo. In re
Gartside, 203 F.3d 1305, 1315–16 (Fed. Cir. 2000). Sub-
stantial evidence is “such relevant evidence as a reasona-
ble mind might accept as adequate to support a
conclusion.” In re Zurko, 258 F.3d 1379, 1384 (Fed. Cir.
2001) (citing Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)).
                         DISCUSSION
    In the instant appeal, Mr. Coutts argues that the
Board erred in “essentially” finding that “the actual
knowledge of the primary reference inventor and what the
primary reference inventor did or did not do with that
knowledge is never relevant in the § 103 analysis.” We
disagree with this characterization of the Board’s deci-
sion. Rather, the record demonstrates that the Board did
consider the evidence of Cheung’s knowledge of the fea-
ture of displaying a list of messages with corresponding
IN RE: COUTTS                                               9



receipt time indications and concluded that such evidence,
in combination with other evidence, actually indicated
that the feature was a “conventional technique” and
furthered the Examiner’s finding that a person of ordi-
nary skill would find the combination obvious. Appx10–
11; see also infra at 11–12.
     The § 103 test for obviousness is whether “the differ-
ences between the claimed invention and the prior art are
such that the claimed invention as a whole would have
been obvious before the effective filing date of the claimed
invention to a person having ordinary skill in the art to
which the claimed invention pertains.” 35 U.S.C. § 103.
If so, the patent is obvious and invalid.
     The standard is “objective,” meaning that it is not tied
to the knowledge of any one person or the actual inventor.
KSR Int’l Co., 550 U.S. 398, 406–07 (2007). The hypothet-
ical person is an “an imaginary being possessing ‘ordinary
skill in the art’ created by Congress to provide a standard
of patentability.” Kimberly-Clark Corp. v. Johnson &
Johnson, 745 F.2d 1437, 1453 (Fed. Cir. 1984). It is a
“legal construct . . . akin to the ‘reasonable person’ used as
a reference in negligence determinations.” In re Rouffet,
149 F.3d 1350, 1357 (Fed. Cir. 1998).
     This is not to say that an individual inventor’s or ex-
pert’s individual knowledge is irrelevant.              Such
knowledge could go to showing whether a person of ordi-
nary skill would have that knowledge as well. It also
could be relevant if the inventor or expert has knowledge,
but specifically explained why he did not claim the limita-
tion (e.g., because he had reason to think it would not
work or that it was too obvious to patent). But this Court
has used such consideration with some caution because
“[r]eal inventors, as a class, vary in their capacities from
ignorant geniuses to Nobel laureates.” Kimberly-Clark
Corp., 745 F.2d at 1453. Similarly, a particular expert’s
personal preference or likelihood of combining references
10                                           IN RE: COUTTS




is not conclusive. See, e.g., Norgren Inc. v. Int’l Trade
Comm’n, 699 F.3d 1317, 1327 (Fed. Cir. 2012). The
standard is, and has always been, what an objective
person of ordinary skill in the art would know. Thus, the
knowledge of any prior art inventor is but one piece of
evidence in determining what a person of ordinary skill
would know and would be likely motivated to do. 3




     3   None of the cases cited by Mr. Coutts are at odds
with this understanding. In In re Kleinman, the appel-
lants argued that had the prior art author known of
cyanoacrylate monomers as suitable for spraying with
aerosol propellants, they would have surely disclosed it.
484 F.2d at 1391–92. Our predecessor court, the Court of
Customs and Patent Appeals, found that there was no
presumption that a prior art inventor knew of such mon-
omers, and that a prior art inventor is not assumed to
have the knowledge of a person of ordinary skill. Id. at
1392. The Court then affirmed the rejection under § 103,
and opined in dicta that, had there been any evidence
that the inventor knew of such monomers, the evidence
would go towards “weighing the content of a patent as a
reference.” Id. In re Kleinman does not suggest that a
finding of non-obviousness is then mandatory.
    The Board cases presented by Mr. Coutts are not
binding on this court; regardless, they do not suggest
error in the Board’s findings in this case. In Ex parte
Skiffington, Ex parte Mahdi and Ex parte Xingwang, the
Board opined that evidence of a prior art inventor’s
knowledge could be relevant to obviousness, but since
appellants had no such evidence, the claims were correct-
ly rejected. 2008 WL 4759865 at *6 (Bd. Pat. App. &
Interf. 2008); 2012 WL 1652569 at *3 (Bd. Pat. App. &
Interf. 2012); 2012 WL 1338663 at *6 (Bd. Pat. App. &
Interf. 2012).
IN RE: COUTTS                                             11



    The Board correctly applied this legal standard.
    Further, the Board did take into account Cheung’s
possible knowledge 4 of the option of organizing notifica-
tions by receipt date/time, but found that such evidence
actually substantiates the Examiner’s finding that a
person of ordinary skill would find the combination obvi-
ous. Appx11. Cheung’s possible knowledge of prior art



    In In re Lower, there was actually evidence that a pri-
or art inventor knew of a possible feature, but did not
claim an invention with that feature. 1997 WL 1943503
at *4 (Bd. Pat. App. & Interf. 2012). But, unlike this case,
the basis for the Examiner’s § 103 rejection was solely
that one piece of prior art. Id. at *2. Thus, the Board
found that since the prior art did not describe or claim the
feature, the reference alone was not enough to render the
claims unpatentable. Id. at *5. Lower, as the Solicitor
accurately describes, is about the scope of one piece of
prior art and if it, on its own, renders the applied-for
claims obvious. This is not analogous to the issue here.
    4   We agree with the Solicitor that it is not clear that
Cheung’s inventors had actual knowledge of the feature of
Microsoft Outlook® that lists email messages in the order
received and indicating the time they were received.
Cheung’s specification references Microsoft Outlook® for
its ability to generate reminder notifications for tasks,
rather than its organization of emails, and Cheung’s
inventors may not have looked very closely at the figures
in the dozens of references contained in the Information
Disclosure. U.S. Patent Application No. 20004/0061716 at
¶¶30, 85, Fig. 3A. However, the Solicitor concedes that
the record “at least establishes constructive knowledge,”
which is the same level of knowledge of the prior art that
the hypothetical person having ordinary skill in the art is
presumed to have. Custom Accessories, Inc. v. Jeffrey-
Allan Indus., Inc., 807 F.2d 955, 962 (Fed. Cir. 1986).
12                                           IN RE: COUTTS




Microsoft Outlook® which organized email notifications
chronologically, combined with the existence of Kang
disclosing the same limitation, and Mr. Coutts’s own
depiction of prior art that did so in Fig. 1b of the ’293
Application all serve as evidence that this limitation was
well-known, conventional, and that a person of ordinary
skill would know the same. Id.
    Further, as the Solicitor points out, there are a num-
ber of reasons why Cheung would have knowledge of the
limitation but not claim it in his patent application,
including that it might have been an obvious variation of
his disclosed invention. It is not so logically clear to
conclude, as Mr. Coutts argues, that Cheung’s lack of
including the limitation is indicia of non-obviousness.
    The Board’s weighing of these facts, including
Cheung’s knowledge, to determine what a person of
ordinary skill would have known, and would have been
motivated to do, is supported by substantial evidence.
    We have considered Mr. Coutts’s remaining argu-
ments, and find them unpersuasive. Thus, we find no
error in the Board’s decision.
                      CONCLUSION
    For the foregoing reasons, we affirm the Board’s deci-
sion finding claims 20–24 and 27–30 of Application No.
11/836,293 properly rejected as obvious under § 103.
                      AFFIRMED
                         COSTS
     No costs.
