Appeal No. 1997-1737 Page 6
Application No. 08/330,168
unexpected result does not, ipso facto, make that difference
obvious under 35 U.S.C. § 103. Thus, the examiner's reliance
(answer, p. 5) on Gardner v. TEC Sys., Inc., 725 F.2d 1338,
220 USPQ 777 (Fed. Cir.), cert. denied, 469 U.S. 830 (1984) to
support a conclusion that the height difference would have
been obvious is misplaced in this instance. In that regard,
it is our view that Gardner did not establish a per se test
that a change in a relative dimension is unpatentable absent
any new or unexpected result. In any case, the appellants'4
specification (see, for example, pages 1-4, 7, 8 and 11)
clearly sets forth that the claimed reduced "height" of the
bushing permits the amount of the precious metal alloy needed
to be reduced while maintaining, and usually improving, the
consistency of the temperature and viscosity of the molten
metal entering the nozzles of the bushing (i.e., a new and/or
unexpected result).
For the reasons set forth above it is clear that the
applied prior art is not suggestive of the claimed invention.
4 Gardner is a case turning on its specific facts. Thus,
Gardner did not create a general obviousness rule.
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