Appeal No. 1996-3198 Page 6
Application No. 08/371,642
obtain the expected enhanced gripping surface for the handle of
the labeler. This is especially true where, as here,2
appellant has not established, either in the specification or
through evidence in the record, that the particular hardness
value of the handle cover material as claimed is critical. See
In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
In light of the above, we agree with the examiner that the
subject matter of claims 1, 8, and 9 would have been prima
facie obvious from the combined references' teachings.
We do not share appellant's viewpoint that the evidence
furnished by appellant (declaration of Borcher, filed October
10,
1995 and admitted prior art labelers in the amendment of
October 10, 1995; pages 3 and 4), which allegedly demonstrates
large sales and use of labelers without an elastomeric cover
for the handle, supports appellant's contention that
patentability lies in the discovery of the impact problem and
2A discussion of Bronson is not necessary to our decision.
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