Appeal 2007-2783
Reexamination 90/005,509
Patent 5,533,499
benefits or advantages may be achieved by having the resilient member
separated from an edge of the truss by more than the width of the resilient
member. On this record, the length of separation limitation is of no
functional significance and merely results in a difference in appearance, and
the greater-than-width separation is no more special than any other distance
of separation. The Examiner is correct that in light of Iriarte’s disclosure
that flexible lamina 1 is smaller than larger body 2, it would have been
obvious to one with ordinary skill in the art to set the distance of separation
between flexible lamina 1 and an edge of larger body 2 to any magnitude
that works, including a distance that is greater than the width of flexible
lamina. The level of ordinary skill in the art is reflected by Iriarte which
leaves much detail to be determined by one with ordinary skill in the art.
The patentee states in the appeal brief on page 15 that the greater-
than-width separation requirement “is absolutely required at a minimum to
accommodate the disclosed second resilient member that is disclosed spaced
apart from the first resilient member recited in claim 23.” However, none of
the rejected claims recites a second resilient member, and thus the assertion
is inapposite for these rejected claims. Also, attorney argument does not
constitute evidence and the assertion is not supported by any testimony by
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