Appeal No. 2006-0010 Page 13
Application No. 10/170,538
not exclude the movement of the gas outlet opening or the use of a rotatable air
injection shaft. Further, we note that Appellants have not presented convincing
evidence that establishes that the apparatus of Jin >358 produces foamed products
which are different from the products produce by the claimed invention.
Appellants argue that A[t]he desired operation of the pipe of Jin'358 apparently
does not rely on the size of any pipe opening and/or pipe face (or a nozzle). Rather, in
order to be able to form gas bubbles (pores) of "uniform" size in the metal melt, the
system of Jin'358 must comprise gas outlet openings (nozzles) which move (rapidly)
inside the metal melt.@ (Brief, p. 48). Appellants further argue Athat Jin'358 does not
even disclose a gas feeding pipe with a gas outlet opening in a strict sense, but only an
impeller with gas nozzles therein. At any rate, Jin'358 does not contain any indication
that modifying the geometry of the impeller nozzles of the system described therein will
have any effect, let alone an advantageous effect.@ (Brief, pp. 49-50).
These arguments are unpersuasive. Jin >358 recognizes that cell size of the
foam being formed is controlled by adjusting various parameters. Specifically, Jin >358
expressly states that the nozzle shape, i.e., size and configuration, affects the cell size
of the foam being formed. (Col. 3, ll. 17-21). Thus, Jin >358 is suggestive of adjusting
the nozzle configuration so as to achieve the proper cell size of the foam being formed.
This accords with the rule that discovery of an optimum value of a result effective
variable in a known process is ordinarily within the skill of the art. In re Boesch, 617
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