Appeal No. 2006-0548
Application 10/381,877
interpreted this claim above. In any event, we find that Basset discloses a sheeting which “may
be between 20 and 150 µm” and a bi-layer sheeting in which the polyamide layer can
“[a]dvantageously” be “10 to 150 µm” (col. 4, ll. 21-33). We determine that one of ordinary
skill in this art routinely following the teachings of Basset to apply the sheeting taught therein as
a gas barrier in soil treatment would have determined workable or optimum sheeting thicknesses
for particular soil treatment conditions. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235
(CCPA 1955) (“[W]here the general conditions of a claim are disclosed in the prior art, it is not
inventive to discover the optimum or workable ranges by routine experimentation.”). Appellants
allegation of “unexpected mechanical properties” is not supported by evidence vis-à-vis the films
of Basset. See In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972) (“This court
has said . . . that mere lawyers’ arguments unsupported by factual evidence are insufficient to
establish unexpected results. [Citations omitted.]”); In re Hoch, 428 F.2d 1341, 1343-44, 166
USPQ 406, 409 (CCPA 1970) (evidence must provide an actual comparison of the properties of
the claimed compositions with compositions of the reference).
Accordingly, based on our consideration of the totality of the record before us, we have
weighed the evidence of obviousness found in Basset with appellants’ countervailing evidence of
and argument for nonobviousness and conclude that the claimed invention encompassed by
appealed claim 9 would have been obvious as a matter of law under 35 U.S.C. § 103(a).
The examiner’s decision is affirmed.
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