Appeal No. 2000-0503 Page 13
Application No. 08/902,031
appellants and determined that the percentage of load transferred through the hanging means for
the examples analyzed ranged from 41% to 72% (declaration, paragraph 14). This discussion,
while perhaps indicative of the breadth of appellants' disclosure with regard to the percentage
of the load transferred through the hanging means, is not pertinent to the subject matter of
claims 83, 108, 121 and 132, which do not specify the percentage of load supported by means
of suspension or hanging of the tank. Likewise, the statement in paragraph 17 of the
declaration that, in declarant's opinion, Toth does not teach a hanging means as disclosed by
appellants and that the cross supports 25 would provide for a de minimis amount of support for
the tank as disclosed and claimed in Toth is not commensurate in scope with claims 83, 108,
121 and 132, which do not require a "hanging means" or that the cross supports 25 provide
any support, let alone more than a de minimis amount of support, for the tank. In any event,9
the statement of opinion in paragraph 17 of the declaration, even if pertinent to the claims, is
entitled to little probative weight since it recites conclusions without any facts to buttress those
conclusions. See In re Brandstadter, 484 F.2d 1395, 1395, 179 USPQ 286, 292 (CCPA 1973).
Moreover, evidence of secondary considerations are but a part of the "totality of the
evidence" that is used to reach the ultimate conclusion of obviousness. See Richardson-Vicks
Inc. v. Upjohn Co., 122 F.3d 1476, 1483, 44 USPQ2d 1181, 1187 (Fed. Cir. 1997).
9It is well settled that evidence presented to rebut a prima facie case of obviousness must be commensurate
in scope with the claims to which it pertains. In re Dill, 604 F.2d 1356, 1361, 202 USPQ 805, 808 (CCPA 1979).
See also In re Grasselli, 713 F.2d 731, 743, 218 USPQ 769, 778 (Fed. Cir. 1983).
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