Appeal No. 1999-0941 Page 8
Application No. 08/756,424
performance exhibit an apparent modulus of greater than about 80,000 psi, as taught by the AAPA, we
feel confident that one of ordinary skill in the art, in following the teachings of Steere, would have
arrived at a marker having an apparent modulus falling within this range. This accords with the general
rule that discovery of an optimum value of a result effective variable (in this case, the optimum rigidity) is
ordinarily within the skill of the art. See In re Boesch, 617 F.2d 272, 276, 205 USPQ 215, 219
(CCPA 1980) and In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
We have carefully considered appellants' argument (brief, page 6) that a marker having a
"relatively high apparent modulus (i.e., over 80,000 PSI)" would have been contrary to the teaching of
Steere that the marker should be capable of "permitting some flexure to conform with irregularities in
the roadway with which the marker is to be associated" (column 5, lines 61-63), but we do not find it
persuasive. We understand Steere as teaching a pavement marker which is "relatively rigid" (column 1,
lines 66-68; see also column 6, line 24), while still permitting some flexure. From our viewpoint, this is
consistent with an apparent modulus greater than about 80,000 psi, which, according to appellants'
own specification (page 4), falls only marginally above the low modulus range. Appellants' argument
seems to presume that a structure having an apparent modulus of greater than about 80,000 psi would
(...continued)3
F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA 1969)). Moreover, skill is presumed on the part of those practicing in the
art. See In re Sovish, 769 F.2d 738, 743, 226 USPQ 771, 774 (Fed. Cir. 1985).
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007