Appeal No. 96-4044
Application 08/396,253
In the present case, the examiner acknowledges on page 8 of
the answer that appellant’s claimed relationship of the width of
the reflective tape to the backing tape and to the height of the
openings in the fence as defined in claim 34 solves the first
problem stated supra, namely the elimination of creases in the
reflective tape across its entire width in the region of the
openings. As a result, this claimed relationship may not be
dismissed as an obvious matter of design choice as the examiner
has done here. Compare In re Kuhle, 526 F.2d 553, 555, 188 USPQ
7, 9 (CCPA 1975) (?Use of such a means . . . solves no stated
problem and would be an obvious matter of design choice within
the skill of the art.?). The solution to the first problem stated
supra is sufficient to preclude the application of the Kuhle rule
pertaining matters of design choice. It therefore is no moment
that the asserted solution to the second problem mentioned above
may be ?unfounded? as contended by the examiner on page 8 of the
answer.
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