Ex Parte Benslimane et al - Page 7

               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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