Ex parte LACOUNT - Page 10

                Appeal No. 97-1107                                                                                    Page 10                   
                Application No. 08/047,512                                                                                                      

                         We also point out that appellant is not alleging that the declarations show any unexpected                             

                results.  Instead, the declarations state that the data shows optimum results and alleges that the invention                    

                fulfills a long-felt need.  We note that establishing a long-felt need requires a showing that there was a                      

                problem recognized by others in the art that persisted for a long period of time and for which there was                        

                no solution.  In re Gershon, 372 F.2d 535, 538, 152 USPQ 602, 605 (CCPA 1967).  Appellant                                       

                presents no objective evidence that others recognized a problem and could not find a solution.  The                             

                evidence submitted in the declarations instead tends to show that the appellant recognized a problem                            

                which he himself solved.  Such a showing does not suffice as evidence of a long felt need.  Id.  372                            

                F.2d at 538, 152 USPQ at 605.                                                                                                   

                         As to the optimization of results, a patent will not be granted based upon the optimization of                         

                result effective variables when the optimization is obtained through routine experimentation.  In re Aller,                     

                220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).  Here, Barnes and Rossiter both suggest                                       

                changing the shape of the cell based upon the configuration of the beam used to minimize cell volume                            

                (Barnes, page 7, lines 18-19), reduce the sample quantity and ensure that the gas is almost completely                          

                confined to the optical path (Rossiter, col. 3, lines 34-41).  Therefore, the cell shape is a result effective                  

                variable.  Optimizing the shape to confine the gas to the beam and reduce the quantity of gas required                          

                and reduce cell volume would be a matter of routine experimentation.                                                            

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