Appeal 2007-1169
Application 09/850,857
would have selected the appropriate materials to control costs, e.g., using
regrind materials to form a center layer as the appearance of a center layer
bounded by inner and outer layers is unimportant.
Throughout its Brief on Appeal, Applicant contends that its claimed
features result in a product that provides distinct advantages. (Br 13).
Applicant’s statements of distinct advantages are attorney argument and are
not supported by sufficient evidence of record. Accordingly, we do not
credit the allegations of distinct advantages over the prior art. Rohm & Haas
Co. v. Brotech Corp., 127 F.3d 1089, 1092, 44 USPQ2d 1459, 1462 (Fed.
Cir. 1997)(Nothing in the rules or in jurisprudence requires trier of fact to
credit unsupported or conclusory assertions). Based upon the record
presented, we find that Applicant has modified known parameters in a
predictable manner to achieve a predictable result.
Generally, Applicant has taken the known prior art panel impact
modifiers of Lause, in amounts known to be suitable to provide impact
resistance, and employed them in the uniform, low cost, low weight triwall
panels of Heilmayr and achieved a predictable result.
We AFFIRM the Examiner’s rejection of claims 1, 3, 5, 7, and 8 over
the cited prior art. Anderson's-Black Rock v. Pavement Co., 396 U.S. 57, 61,
163 USPQ 673, 674 (1960) (combination of old elements that added nothing
to the nature and quality of the product was obvious).
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