Appeal No. 96-3404
Application 08/145,775
points downward in metal forms which can be packed
continuously together . . .” (page 2, column 2, lines 62 and
63). Martin teaches the making of concrete posts and suggests
that as “an environmental benefit” the concrete may also
include filler of “recyclable rubber, e.g. from discarded
tires chipped to a size of 0.5 inch and smaller” (see column
1, lines 59 and 60). Viner in column 1, lines 16-22, clearly
teaches that “unused” or “waste” concrete may be used to “make
concrete products.” In our view, one of ordinary skill in
this art would have found it obvious to utilize tire chips in
the method of Harza as taught by Martin in order to achieve
Martin’s expressly stated advantage of providing an
environmental benefit by using recyclable rubber. As to the
particular percentage of tire chips and “spent” concrete, the
selection of an optimum value for such a variable is
ordinarily an obvious matter which is within the skill of the
art. See In re Boesch, 617 F.2d 272, 276, 205 USPQ 215, 219
(CCPA 1980). Note also In re Woodruff, 919 F.2d 1575, 1578,
16 USPQ2d 1934, 1936-37 (Fed. Cir. 1990). Although the
examiner has additionally relied on the teachings of
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