Appeal 2006-2730
Application 10/415,631
Although Appellants assert that a molded wave area is structurally
distinct from a non-molded wave area, Appellants have provided absolutely
no evidence to support this assertion. It is well settled that mere lawyer’s
arguments and conclusory statements, which are unsupported by factual
evidence, are entitled to little probative value. In re Geisler, 116 F.3d 1465,
1470, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d
699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984); In re Wood, 582 F.2d 638,
642, 199 USPQ 137, 140 (CCPA 1978); In re Lindner, 457 F.2d 506, 508-
09, 173 USPQ 356, 358 (CCPA 1972).
In any event, on this record, we find no evidence that suggests a
structural distinction between Pelrine’s etched wave surface and a molded
wave surface as claimed. Absent evidence to the contrary, we find that
molding the wave member in lieu of etching it simply does not impart
distinctive structural characteristics to the wave member. Moreover,
Appellants’ assertions regarding a molded wave area being structurally
distinct from a textured area formed by a pre-strained interaction of two
materials in Pelrine is not germane to Pelrine forming the waved area by an
etching process. The Examiner’s rejection of claim 22 is therefore
sustained.
We now consider the Examiner’s rejection of claims 17 and 18 under
35 U.S.C § 103(a) as unpatentable over Pelrine. In rejecting claims under 35
U.S.C. § 103, it is incumbent upon the Examiner to establish a factual basis
to support the legal conclusion of obviousness. See In re Fine, 837 F.2d
1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so doing, the
Examiner must make the factual determinations set forth in Graham v. John
Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467 (1966). If that burden is
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