Appeal 2006-1768
Application 10/389,327
as the reference alloy). Stated differently, it would have been obvious to
develop a workable range for the art-recognized, result-effective variable of
burner port area, and the Appellants’ admission that about .97 in2 per (MM)
Btu/hr is a conventional burner port area reasonably supports the
proposition that a similar area of 1.0 in2 per (MM) Btu/hr would be within
the aforementioned workable range.
We are not persuaded by Appellants’ argument regarding lack of
motivation to increase burner port size because of the alleged burner
instability that would accompany the increase. As we discussed above, there
are a number of reasons for manipulating the burner port size (e.g., flame
form, flame size, etc.). An artisan would have recognized that any
adjustment (i.e., increase or decrease) in burner port area would obviously
require manipulation of the various other features of the burner to maintain a
stable burner operation. Regardless of the reason for increasing the burner
port area, the motivation for doing so need not be the same as Appellants’
motivation (i.e., to increase FGR). In re Kemps, 97 F.3d 1427, 1430, 40
USPQ2d 1309, 1311 (Fed. Cir. 1996) (Although the motivation to combine
here differs from that of the applicant, the motivation in the prior art to
combine the references does not have to be identical to that of the applicant
to establish obviousness.); see also, In re Beattie, 974 F.2d 1309, 1312, 24
USPQ2d 1040, 1042 (Fed. Cir. 1992).
Moreover, we are not persuaded by Appellants’ argument that there
would have been no reasonable expectation of success with respect to
increasing Fischer’s burner port area because the art has not recognized
burner port area as a result-effective variable. As we found above, Fischer
demonstrates that burner port area is a result-effective variable in this art.
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