Appeal No. 2005-2694
Application No. 10/208,631
The anti-erosion device disclosed by Albright has a length to
major diameter ratio of 40:12 (approximately 3.3) which is far
smaller than the “greater than 40” or “greater than approximately
40” ratio required by these claims. Albright also teaches that the
device disclosed therein weighs about forty-five pounds and is
readily handled by workers and easily installed. This disclosure
by Albright, and the disclosure of a similar device by Grabhorn,
would not have furnished the artisan with any suggestion or
motivation to selectively enlarge the dimensions, and change the
proportion, of the Albright bag in the manner proposed by the
examiner so as to arrive at the length to diameter ratio recited in
the claims. The Albright device as so modified would be
substantially longer and heavier than that contemplated by the
reference for ready handling and easy installation.
The reliance by the examiner on a bald assertion of knowledge
generally available to one of ordinary skill in the art to bridge
the evidentiary gap posed by Albright and Grabhorn is not well
taken. Such unfounded assertions are not permissible substitutes
for evidence. See In re Lee, 277 F.3d 1338, 1345, 61 USPQ2d 1430,
1435 (Fed. Cir. 2002).
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