Appeal No. 2006-1484
Application No. 09/828,480
and pore layer” between a surface layer and a sheet, would have
suggested employing a centrally located foam layer within the
meaning of 35 U.S.C. § 103. We note that the appellants do not
dispute the examiner’s finding that the “open-cell and pore
layer” is a definition for or inclusive of a foam layer. Compare
the Answer, page 5, with the Brief in its entirety.
As to claims 27 through 29, we observe no reversible error
in the examiner’s finding that the size of the filaments of the
backing and decorative layers taught by Stricker is a result
effective variables inasmuch as the size of the filaments is
known to affect, for example, design and reinforcement functions.
Thus, we concur with the examiner that one of ordinary skill in
the art would have been led to employ optimum filament sizes,
such as those claimed, within the meaning of 35 U.S.C. § 103. In
re Boesch, 617 F.2d 272, 276, 205 USPQ 215, 219 (CCPA
1980)(“[D]icovery of an optimum value of a result effective
variable . . . is ordinarily within the skill of the art.”).
Thus, based on the totality of record, including due
consideration of the appellants’ arguments, we determine that the
preponderance of evidence weighs most heavily in favor of
obviousness regarding the subject matter defined by claims 18
through 25 and 27 through 29 within the meaning of § 103.
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