Appeal No. 95-4984
Application No. 08/038,369
of a metal article has an effect on the integrity of
the article. It is also well known not to preheat
or postheat the substrate to a degree that will in
any way effect [sic, affect] the structural
characteristics, i.e., tensile and yield strength by
fatigue testing. Therefore[,] it would have been
obvious to obtain through routine experimentation
the optimum pre-heat time and temperatures as argued
above.
Appellants have not challenged or refuted the above-quoted
factual determination, i.e., appellants have only argued that
the relationship between time, temperature and strength of the
metal is not disclosed in either of the applied references.
Accordingly, inasmuch as appellants have not questioned the
accuracy of the examiner's finding, which is reasonable on its
face, nor demonstrated that it is clearly erroneous, we will
accept as fact that one of ordinary skill in the art, at the
time of filing the present application, understood that
commercial metals have known relationships between
time/temperature heating cycles and tensile and yield
strength. In re Fox, 471 F.2d 1405, 1407, 176 USPQ 340, 341
(CCPA 1973); In re Boon, 439 F.2d 724, 727, 169 USPQ 231, 234,
(CCPA 1971); In re Ahlert, 424 F.2d 1088, 1091, 165 USPQ 418,
421 (CCPA 1970); In re Kunzmann, 326 F.2d 424, 425 n.3, 140
USPQ 235, 236 n.3 (CCPA 1964). Indeed, it would appear that
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