Appeal No. 2000-0523
Application 08/583,307
effective depth figure, much less one falling within the
claimed range. Indeed, neither reference even mentions
guardrail barrier effective depth. Simply put, Brown and
Martin are completely devoid of any factual basis supporting
the examiner’s determination that the barriers disclosed
therein inherently have an effective depth meeting the
particular range recited in claim 1.
Brown and Martin are also devoid of any factual basis
supporting the examiner’s conclusion that the effective depth
specified in claim 1 would have been obvious as a matter of
routine experimentation. While the discovery of an optimum
value of a variable in a known process (or product) is
normally obvious, exceptions lie where the results of
optimizing the variable are unexpectedly good or where the
parameter optimized was not recognized to be a result-
effective variable.
In re Antonie, 559 F.2d 618, 620, 195 USPQ 6, 8-9 (CCPA 1977).
Here, neither Brown nor Martin provides any hint that the
effective depth of the guardrail barriers respectively
disclosed therein is an art recognized result-effective
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