Appeal No. 2005-2487
Application 08/900,254
is making a factual assumption that an additional step is required if cold rolling is used,
founded only on attorney argument. Attorney argument is not evidence.
Second, the appellant’s position assumes that the skilled artisan lacks skill. The
skilled artisan would not engage in an additional step of reheating the web
unnecessarily. We observe that the deletion or exclusion of a senseless step does not
define over the prior art. See, e.g., In re Kuhle, 526 F. 2d 553, 555, 188 USPQ 7, 9
(CCPA 1975)(deletion of prior art member, eliminating its function, was an obvious
expedient); In re Larson, 340 F. 2d 965, 969, 144 USPQ 347, 350 (CCPA 1965)(If
additional features are not desired, obvious to eliminate the feature and function it
serves). See also In re Sovish, 769 F.2d 738, 743, 226 USPQ 771, 774 (Fed. Cir.
1985) (Rejecting argument that presumes stupidity rather than skill).
Finally, the appellant has urged that the office has provided “only conclusory
hindsight, reconstruction, and speculation” without evidence. (Appeal Brief, page 11,
lines 19-23). We disagree. Yamamoto describes a web of the claimed type, which web
can be calendered, embossed or creped, for a filter application. Naruo describes pleats
as being particularly effective at enhancing filtration. Norton describes rollers which
result in corrugation to accomplish the provision of pleats, also in the filter art. There
are limited means of activating a web – heating the web first, or via contact with a
heated roller. Reheating a finished pleated filter material would be a waste of energy,
without reason for so doing.
The appellant has failed rebut these findings with any meaningful evidence or a
showing of unexpected results.
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