Appeal No. 2005-2458 5
Application No. 10/003,900
As seen from the above reproduced portion of McGuire, McGuire does not limit the
selection of adhesive to the hot melt of H.B. Fuller, but suggests that other adhesives
may be selected. McGuire also indicates that protrusion design has an effect on
sealing. These disclosures provide evidence that routine experimentation to find
workable or optimal thickness ranges for a given adhesive and protrusion design was
within the capabilities of one of ordinary skill in the art and would depend on the various
selections made.
Appellants attempt to buttress their argument with the Wnuk Declaration (Brief,
p. 7). But, again, the Declaration overlooks the critical fact that McGuire suggests more
than simply providing a layer of about 0.0005 inch to about 0.002 inch thick adhesive
for a particular adhesive. As we pointed out above, that is but one preferred thickness
of a specific hot melt adhesive made by H. B. Fuller Co. The evidence provided in
Wnuk Declaration does not overcome the suggestion of performing routine
experimentation to determine workable and optimal thicknesses that is implicit in the
disclosure of McGuire as discussed above.
In this situation, a prima facie case of obviousness is established and the burden
shifts to Appellants to show that the claimed ranges "produce a new and unexpected
result which is different in kind and not merely in degree from the results of the prior
art." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (1955). Appellants rely upon
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