Appeal No. 97-2557 Page 7
Application No. 08/453,829
fibers was an obvious engineering design choice. We do not
agree.
As correctly pointed out by the appellants (brief, page 7)
the examiner has not pointed to any disclosure of any concrete
material having a compressive strength of at least 80 Newtons per
square millimeter. Since the examiner has not established that
concrete material having a compressive strength of at least 80
Newtons per square millimeter was known in the art at the time
the invention was made, the examiner has not provided a factual
basis to conclude that such a concrete would have been an obvious
engineering design choice. Moens is silent as to the compressive
strength of the concrete used in his invention. Thus, the
compressive strength is a matter of engineering design choice,
but only within the known range of compressive strengths for
known concretes. Since the record before us only establishes
that concrete having a compressive strength of up to 50 Newtons
per square millimeter were known in the art, we are constrained
to reverse the examiner's implicit determination that concrete
having a compressive strength of at least 80 Newtons per square
millimeter would have been obvious to one of ordinary skill in
the art at the time the invention was made.
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