Appeal No. 96-2866 Page 14
Application No. 08/185,221
As to the particular frequency of "about 1200 oscillations
per minute" as set forth in claim 25, the specification sets
forth this parameter as "a specific example" (page 3) and
further states that the "oscillation frequency may be varied
and is dependent upon many factors" (page 7). Since the
provision of an oscillation frequency of about 1200
oscillations per minute appears to solve no stated problem
insofar as the record is concerned, we conclude that such a
provision obvious is a matter engineering design choice. See
In re Kuhle, 526 F.2d 553, 555, 188 USPQ 7, 9 (CCPA 1975).
As evidence of nonobviousness the appellant has relied on
declarations by Ashworth, Body and Talesisnik. Each of these
declarations state essentially the same thing. Paragraphs 4
and 5 of each declaration states that the declarant is familiar
with the references to Longfellow, Leuenberger and Bray which
were relied on by the examiner and concludes that it would not
have been obvious to insert an oscillating K-wire into bone in
view of these teachings. Here, however, we have relied on the
combined teachings of the admitted prior art and Leuenberger,
rather than the specific reference combination relied on by the
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