Appeal No. 98-1922 Page 14
Application No. 08/253,721
We agree with the examiner that the limitations set forth
in claims 8 and 9 would have been obvious to one of ordinary
skill in the art at the time the invention was made since
skill is presumed on the part of those practicing in the art.
See In re Sovish, 769 F.2d 738, 743, 226 USPQ 771, 774 (Fed.
Cir. 1985). In this regard, we note that Maeda does not
disclose either the specific material and hardness of Maeda's
synthetic rubber top-surface component 5 or its thickness.
Thus, Maeda left it up to the artisan to select an appropriate
material, hardness and thickness. In our view, the selection
of a closed foam construction with a hardness greater than 75
durometers on the shore 00 scale as Maeda's synthetic rubber
top-surface component 5 would have been obvious to an artisan.
Likewise, the selection of the thickness of Maeda's synthetic
rubber top-surface component 5 to be a minimum of ½ inch thick
would have been obvious to an artisan.
This accords with the general rule that discovery of an
optimum value of a result effective variable (in this case,
the optimum material or thickness) is ordinarily within the
skill of the art. See In re Boesch, 617 F.2d 272, 276, 205
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