Appeal No. 1998-2732
Application No. 08/244,163
polyamide and 40 to 90% by weight of polyethylene or
polypropylene and having “excellent impermeability to both
liquid and gaseous organic compounds such as hydrocarbons.”
(Id.) With respect to the appellants’ admitted prior art, the
examiner alleged that “it is conventional to use medium density
polyethylenes to form the outer layer of a fuel tube...” (Id.)
On the basis of these findings, the examiner concluded as
follows:
It would have been obvious to a person
of ordinary skill in the art at the time the
invention was made to utilize a hydrocarbon-
impermeable polyolefin/polyamide blend as
disclosed in PRETO ET AL as the inner
barrier layer and a conventional polyolefin
as the outer layer as admitted by the
Appellants to form a coextruded tube as
disclosed in RUSSELL in order to obtain a
delamination-resistant hydrocarbon-
impermeable article having good mechanical
properties and barrier properties. [Id. at
p. 5.]
In our judgment, the examiner has erred in both the
findings of fact and the conclusion of law. Contrary to the
examiner’s allegation, the appellants’ admissions regarding the
prior art does not state that “it is conventional to use medium
density polyethylenes to form the outer layer of a fuel tube...”
(Id. at page 4; emphasis added.) Instead, the appellants’
admission merely states that polyethylene tubes are conventional
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