Appeal No. 97-4166
Application No. 08/478,647
The appellant also argues that the element 64 of Hummer
should not be considered to be a part of the "wall;" however,
this matter was fully treated on page 12 of our decision.
With respect to claims 79, 83 and 88 the appellant argues
that on pages 13 and 14 of our decision we improperly held:
the provision of eight degrees vis-à-vis the angle
depicted in the "blow-up" of Fig. 7 of Hummer on
page 34 of the brief solves no stated problem
insofar as the record is concerned, leading us to
conclude that such a provision is an obvious matter
of design choice. See In re Kuhle, 526 F.2d 553,
555, 188 USPQ 7, 8-9 (CCPA 1975).
According to the request, "in order to be an obvious design
choice there must be motivation in the prior art to modify the
prior art structure" (page 10), apparently reciting In re
Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977) as authority for
such a notion. Antonie, however, was more narrowly concerned
with the determination of the optimum or workable ranges in a
recognized result-effective variable and does not stand for
the broad proposition that the appellant attributes to it. As
the court stated in In re Woodruff, 919 F.2d 1575, 1578, 16
USPQ2d 1934, 1936 (Fed. Cir. 1990):
Nor can patentability be found in the difference in
. . . ranges recited in the claims. The law is
8
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