Appeal No. 98-2031
Application 08/794,154
therein as being a “conformable pad,” while Chen repeatedly describes the gelatinous elastomeric
compositions therein as being extremely soft, highly flexible, easily hand deformable and highly elastic,
with a gel rigidity of “about 20 gram or lower to about 700 gram Bloom” (col. 4, lines 25-36). Thus, it
is seen that compliancy of the pad material is an important characteristic to both Runckel and Chen and
would have been recognized by one of ordinary skill in the art of goggles as being a result effective
variable in that art. In that regard, we note that it is well settled that the discovery or determination of
an optimum value of a result effective variable is ordinarily within the skill of the art and thus obvious.
See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) and In re Boesch, 617 F.2d
272, 276, 205 USPQ 215, 219 (CCPA 1980). We also observe that appellants have neither argued
nor demonstrated by objective evidence that the gelatinous elastomeric compositions of Chen do not
have a compliancy in the range set forth in claim 2 on appeal. Thus, the examiner’s rejection of claim 2
under 35 U.S.C. § 103 is sustained. As per appellants’ grouping of the claims on page 4 of their brief,
it follows that claim 40 will fall with claim 2.
Looking to independent claim 37, we note that we have sustained the examiner’s rejection of this
claim under 35 U.S.C. § 112, second paragraph, as being indefinite. Since we have no clear idea as to
exactly what composition of gelatinous elastomer is encompassed by “a synthetic polymer gel of the
type used in the Kitecko Ultrasound Standoff Pad manufactured by 3M Corporation of St. Paul,
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