Appeal No. 2004-0572
Application 09/849,315
a conclusion of nonobviousness (i.e., for a claim which might
be restricted to this desideratum such as appealed dependent
claim 9). This is because the record of this appeal contains no
support for the appellant’s aforequoted assertion that “[t]he
elimination of mosquito breeding grounds in outside bulk storage
sites for reclaimable tire rubber . . . is not achieved by either
cited reference” (Brief, pages 12-13). More particularly, the
§ 1.132 Declaration is insufficient to establish that the stacked
structures of Miller could not avoid water accumulation, and the
Declaration does not even contain an assertion that the stacked
structures of Pignataro could not avoid water accumulation.
In short, the appellant’s argument regarding the
elimination of mosquito breeding grounds is not well taken for a
number of reasons. First, while this result is concededly
desirable, it is clear that not all of the appealed claims are
restricted to the achievement of such a result. See In re Dill,
604 F.2d 1356, 1361, 202 USPQ 805, 808 (CCPA 1979). Second, no
support exists for the appellant’s assertion that the applied
prior art would not be capable of achieving this result. See In
re Merchant, 575 F.2d 865, 869, 197 USPQ 785, 788 (CCPA 1978).
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