Appeal 2006-3364
Application 10/305,972
The Appellant argues that Alcocer would not have fairly suggested to
one of ordinary skill in the art that using spacer cords in place of pleated
strips would reduce costs and complexity (Br. 7-8). As pointed out above,
for a prima facie case of obviousness to be established the prior art need not
be modified for the purpose of solving the problem addressed by the
Appellant. See Kemps, 97 F.3d at 1430, 40 USPQ2d at 1311; Beattie, 974
F.2d at 1312, 24 USPQ2d at 1042; Dillon, 919 F.2d at 693, 16 USPQ2d at
1901. The Examiner relies upon the Appellant’s admitted prior art for a
disclosure of spacer cords (Final Rejection mailed April 13, 2004, p. 2).
Alcocer’s indication that mechanical fasteners and adhesives are effective
for bonding spacing strips to ribs between sections of pleated material
(col. 4, ll. 41-45) would have led one of ordinary skill in the art, through no
more than ordinary creativity, to use adhesive as an alternative to mechanical
fasteners for fastening the spacer cords at the joints between the pleated
material sections in the Appellant’s prior art figures 1 and 3. See KSR Int’l
Co. v. Teleflex Inc., 127 S.Ct. at 1742, 82 USPQ2d at 1397.
The Appellant argues that it would have been unexpected to one of
ordinary skill in the art that an adhesive bead at a point location “would
provide the necessary strength for reliably obtaining uniform spacing of the
pleats” (Reply Br. 2). The Appellant’s claims do not require reliably
obtaining uniform spacing of the pleats. Regardless, the Appellant has not
provided evidence of unexpected results. Arguments of counsel cannot take
the place of evidence. See In re De Blauwe, 736 F.2d 699, 705, 222 USPQ
191, 196 (Fed. Cir. 1984); In re Payne, 606 F.2d 303, 315, 203 USPQ 245,
256 (CCPA 1979).
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