       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
             __________________________

            (Reexamination No. 95/000,355)
                 PLASMART, INC.,
                    Appellant,
                           v.
       DAVID J. KAPPOS, DIRECTOR,
  UNITED STATES PATENT AND TRADEMARK
                 OFFICE,
                 Appellee,
                         and
     JAR CHEN WANG AND HONG JIUN GU,
                 Appellees.
             __________________________

                     2011-1570
             __________________________

    Appeal from the United States Patent and Trademark
Office, Board of Patent Appeals and Interferences.
              ____________________________

                Decided: May 22, 2012
            ____________________________

   JEFFREY SONNABEND, Sonnabend Law, of Brooklyn,
New York, argued for appellant.
PLASMART   v. KAPPOS                                     2


    BRIAN T. RACILLA, Associate Solicitor, United States
Patent & Trademark Office, of Alexandria, Virginia,
argued for appellee David J. Kappos, Director, United
States Patent and Trademark Office. With him on the
brief were RAYMOND T. CHEN, Solicitor, and SCOTT C.
WEIDENFELLER, Associate Solicitor.

   CHRISTOPER W. RAIMUND, Morris, Manning & Martin,
LLP, of Washington, DC, argued for appellees Jar Chen
Wang et al With him on the brief was BRYAN G.
HARRISON, of Atlanta, Georgia.
              __________________________

    Before LOURIE, DYK, and MOORE, Circuit Judges.
LOURIE, Circuit Judge.
    PlaSmart, Inc. (“PlaSmart”) appeals from the Board’s
allowance of claims 1 and 20–33 of Wang and Gu’s U.S.
Patent 6,722,674 (the “’674 patent”) during inter partes
reexamination. Because the Board erred both in revers-
ing the examiner’s rejection of representative claim 1 as
obvious and in affirming the examiner’s allowance of
claims 20–33 as patentable, we reverse.
                       BACKGROUND
    The ’674 patent describes a safety improvement for a
scooter, in particular a safety wheel added to help prevent
the scooter from flipping over.
3                                      PLASMART   v. KAPPOS




’674 patent, Figs. 4, 5. The claimed safety equipment is a
safety wheel (24) that is connected to the free end of a
supporting arm (23) that extends frontwardly from a
twister member (2) to which a pair of driving wheels (21
and 22) are also attached. ’674 patent, col.3 ll.30–45.
Claim 1 reads as follows:
    1. A scooter, comprising:
    a scooter body;
    a pair of rear wheels rotatably supported at a rear
    portion of said scooter body;
    a transmission unit having an upper control por-
    tion positioned above said scooter body and a
    lower connecting portion extended underneath
    said scooter body;
PLASMART   v. KAPPOS                                     4


   a steering means affixed to said control portion of
   said transmission unit for driving said connecting
   portion thereof to rotate in clockwise and anti-
   clockwise directions;
   a twister member having a driven portion con-
   nected to said connecting portion of said transmis-
   sion unit;
   a pair of driving wheels spacedly and rotatably
   mounted to said twister member wherein said two
   driving wheels are spaced apart from said driven
   portion of said twister member; and
   a safety driving equipment, comprising:
   a supporting arm frontwardly extended from said
   driven portion of said twister member; and
   a safety wheel which is rotatably mounted to a free
   end of said supporting arm to support a front por-
   tion of said scooter body and prevent said scooter
   from being flipped over.
’674 patent, col.6 ll.17–41 (emphases added). Claims 20–
27, added during reexamination, depend directly or
indirectly from claim 1. Claims 29–33, also added during
reexamination, depend either directly or indirectly from
newly added independent claim 28, which contains all the
limitations recited in claim 1. The additional features of
claims 20–33 place the safety wheel in a center forward
position of the driving wheels, a supporting arm integrally
extended from the twister member at the driven position,
and having the supporting arm and twister member
swing right and left through the transmission unit.
PlaSmart, in its request for inter partes reexamination,
alleged that the ’674 patent was anticipated and obvious
in view of two prior art references: Song and Handong.
5                                      PLASMART   v. KAPPOS


    Song, Chinese Patent Application 89211060.0, dis-
closes a children’s exercise tricycle. Song describes using
two wheels (24), only one of which is visible in Figure 1,
mounted off the ground that make contact during sharp
turns to prevent tipping. Song, in its written description,
discloses that the safety wheels are attached to the tricy-
cle body base plate (4). Handong, Chinese Patent Publi-
cation CN 3114939D, discloses a scooter, similar to the
’674 patent, having a pair of front and rear driving
wheels, but without any supporting safety wheel.




                          Song




                       Handong
PLASMART   v. KAPPOS                                      6


    During reexamination, the Examiner rejected claim 1
of the ’674 patent as anticipated by Song and obvious over
Handong in view of Song. The Examiner found that Song
discloses all the limitations of claim 1, including both “a
supporting arm frontwardly extended from said driven
portion of said twister member” and “a safety wheel which
is rotatably mounted to a free end of said supporting arm
to support a front portion of said scooter body and prevent
said scooter from being flipped over” at issue in this
appeal. In particular, the examiner found that the front
end of the tricycle’s base plate in Song meets the “support-
ing arm” limitation. The examiner then held claims 20–
33 to be patentable because the safety wheel in Song was
not attached in the same position or manner as in claims
20–33 and the claimed features have not been shown to be
predictable variations of claim 1.
    The Board reversed the rejection of claim 1, holding
that Song did not clearly disclose the “supporting arm” of
claim 1, noting that while Song disclosed safety wheels
attached to the tricycle base plate, it did not disclose the
means of attachment. The Board also found that Song
Figure 1, read in light of the disclosure in the written
description, could not anticipate alone because no portion
of the tricycle body base plate is an “arm.” The Board
held that the combination of Song and Handong would
result in a scooter with two safety wheels, raised off the
ground, and attached to the base plate, necessarily lack-
ing the “supporting arm” limitation required for claims 1
and 20–33. PlaSmart appealed the Board’s decision to
this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(4)(A).
7                                        PLASMART   v. KAPPOS


                        DISCUSSION
                             I.
     The scope of our review in an appeal from a Board de-
cision is limited. We review the Board’s factual findings
for substantial evidence and review the Board’s legal
conclusions de novo. In re Kotzab, 217 F.3d 1365, 1369
(Fed. Cir. 2000). A finding is supported by substantial
evidence if a reasonable mind might accept the evidence
to support the finding. Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938).
    PlaSmart argues that the Board erred in finding
claim 1 not anticipated by Song Figure 1. In support of
this argument, PlaSmart notes that Song Figure 1 must
be viewed in isolation for all that it teaches, even if acci-
dental, and that when viewed as such, Figure 1 discloses
a frontwardly extending arm. PlaSmart also argues that
claims 1 and 20–33 were obvious in light of Handong and
Song and faults the Board for failing to take a common
sense view of the references.
    As an initial matter, we disagree with PlaSmart that
Song anticipates claim 1. If “each and every limitation is
found either expressly or inherently in a single prior art
reference,” then a claim is invalid under § 102 for antici-
pation. Sanofi–Synthelabo v. Apotex, Inc., 470 F.3d 1368,
1375 (Fed. Cir. 2006) (quoting Celeritas Techs. Ltd. v.
Rockwell Int'l Corp., 150 F.3d 1354, 1361 (Fed. Cir.
1998)). Here, Song fails to teach each and every limita-
tion. Claim 1 requires “a supporting arm frontwardly
extended from said driven portion of said twister mem-
ber.” As the Board noted, the arm in Figure 1 of Song is
not attached to the twister member. Instead, the arm is
attached to the base plate, and thus does not meet this
limitation. Therefore, as Song does not disclose this
limitation, it cannot anticipate claim 1.
PLASMART   v. KAPPOS                                       8


     We also reject PlaSmart’s argument that each draw-
ing in a prior art reference must always be viewed in
isolation from the rest of a reference. Our precedent has
held that drawings can be used as prior art, without
referring to the surrounding description, only if the prior
art features are clearly disclosed by the drawing. See,
e.g., In re Wagner, 63 F.2d 987, 986–87 (CCPA 1933)
(“While it is true that drawings may not always be relied
upon for anticipation of a later application, it is also true
that, if a drawing clearly suggests to one skilled in the art
the way in which the result sought is accomplished by a
later applicant, it is immaterial whether the prior pat-
entee’s showing was accidental or intentional.”) (internal
citations omitted); see also In re Mraz, 455 F.2d 1069,
1072 (CCPA 1972) (“[W]e did not mean that things patent
drawings show clearly are to be disregarded.”); In re Seid,
161 F.2d 229, 231 (CCPA 1947) (“[A]n accidental disclo-
sure, if clearly made in a drawing, is available as a refer-
ence.”). Here, the Board properly followed this precedent.
The Board found that Figure 1 of Song did not clearly
disclose a safety wheel attached to an arm frontwardly
extended from the driven part of the twisting member or
how those wheels were attached to the tricycle. Because
of that ambiguity, the Board properly referred to the rest
of the disclosure in determining that Figure 1 of Song
describes safety wheels attached to the base plate, and
thus cannot anticipate claim 1.
    We do, however, agree with PlaSmart and the exam-
iner that claim 1 would have been obvious over Handong
in view of Song. Under the Patent Act, “[a] patent may
not be obtained . . . if the differences between the subject
matter sought to be patented and the prior art are such
that the subject matter as a whole would have been
obvious at the time the invention was made to a person
having ordinary skill in the art to which said subject
9                                         PLASMART   v. KAPPOS


matter pertains.” 35 U.S.C. § 103(a). Although the
ultimate determination of obviousness under § 103 is a
question of law, it is based on several underlying factual
findings, including (1) the scope and content of the prior
art; (2) the level of ordinary skill in the pertinent art; (3)
the differences between the claimed invention and the
prior art; and (4) evidence of secondary factors, such as
commercial success, long-felt need, and the failure of
others. Graham v. John Deere Co., 383 U.S. 1, 17–18
(1966). “The combination of familiar elements according
to known methods is likely to be obvious when it does no
more than yield predictable results.” KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 416 (2007). In other words,
when there exists a finite number of identified, predict-
able solutions to a known problem, a combination that
results in “anticipated success” is likely the product not of
innovation, but of ordinary skill and common sense. Id.
at 421. That is the case here.
    The Board, in reversing the examiner’s rejections, re-
lied only on minor distinctions between the prior art and
the claimed invention. Handong shows all the limitations
of claim 1 of the ’674 patent except the safety driving
equipment, which is not disputed on appeal. The Board
agreed with the examiner that Song discloses a reason for
adding universal wheels (the safety driving equipment in
Song) to Handong’s scooter, but then held that because
Song does not place those universal wheels in the exact
location as the ’674 patent, it cannot render claim 1
obvious. But such a distinction reads the teaching of Song
too narrowly.
    Song discloses a safety feature, namely, using univer-
sal stabilizing wheels on the front of a scooter. Whether
or not those wheels touch the ground all the time, the
safety disclosure in Song is that an additional wheel
placed in front of the twister member provides additional
PLASMART   v. KAPPOS                                   10


stability in the direction of movement when in contact
with the ground, which in the case of Song occurs in the
direction of the turn. Modifying the Handong scooter to
prevent tipping by placing such a safety wheel in front of
the twister member would thus have been obvious for one
with skill in the art trying to increase stability in the
direction of movement. The decision to attach the Song
safety wheel directly to the twister member instead of the
body would have been a common sense alternative design
choice and reasonably obvious to one of ordinary skill in
designing a safety feature to prevent tipping of the Han-
dong scooter. Such a modification is nothing more than a
predictable use of prior art elements (universal wheels in
contact with the ground in front of the twister member) to
address a known problem (stability), and would thus have
been obvious. See KSR, 550 U.S. at 417. We therefore
reverse the Board’s holding that claim 1 would not have
been obvious over the prior art.
    Claims 20–33, added during reexamination and held
to be patentable by the examiner, were each also held by
the Board to be patentable over Handong in view of Song
for the same reasons that the Board affirmed patentabil-
ity of claim 1. Because claims 20–33 add only minor,
predictable variations to claim 1, we agree with PlaSmart
that those claims would have been obvious as well.
Accordingly, the Board’s decision is reversed.
                       REVERSED
