Appeal 2006-1768
Application 10/389,327
Because burner port area is a result effective variable, it is reasonable to
expect success in developing workable or optimized burner port areas.
Appellants cite to a non-precedential Board decision, Ex parte
Sullivan 2003 WL 23014513 (Bd. Pat. App. & Interf.), to support their
argument that Aller is not applicable to the facts of the present appeal. The
Sullivan decision does not support the Appellants’ position in the present
appeal for two reasons. First, it is a non-precedential decision that is not
binding on the Board.1 Second, the facts in Sullivan are inapposite to the
facts of the present appeal. As we determined above, burner port size is an
art recognized, result-effective variable. As such, it would have been prima
facie obvious to develop workable values for this variable. Woodruff, 919
F.2d at 1578, 16 USPQ2d at 1936-1937; Boesch, 617 F.2d at 276, 205
USPQ at 219; Aller, 220 F.2d at 456, 105 USPQ at 235.
Appellants allege the following statement shows unexpected results:
“Intuitively, it would be expected that raising the tip flow area would
proportionally reduce tip velocity, but instead, it is found that the drop in
velocity can be mitigated by the fact that raising tip flow area raises FGR”
(Specification, ¶ [0033]). Regarding this allegation, we agree with the
Examiner’s analysis in the Answer.
Under the circumstances of this appeal, Appellants’ single sentence
statement in the Specification, without more, is not sufficient to prove
unexpected results. Appellants’ quoted statement above provides no express
statement of unexpected results and fails to explain why the increase in FGR
in response to an increase in burner port area is unexpected. Additionally,
1 See, Board of Patent Appeals and Interferences Standard Operating
Procedure 2: Publication of Opinions and Binding Precedent § VII(F)
(August 10, 2005, Rev. 6).
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