Appeal No. 1999-2329
Application 08/642,278
reads in its entirety (col. 12, lines 55 to 58, emphasis
added):
Upon transport through the coextrusion die, the united
layers of plasticized or melted polymer or polymer
mixture are cooled such as by a water bath or air to
congeal them into solid multilayered tubing.
Thus, Fanselow discloses only cooling (quenching) to congeal
the polymer; there is no disclosure of heat setting.
The examiner further refers to the fact that both the
appellants and Fanselow disclose the use of a cold bath to
solidify the oriented tubing. It is not apparent, however,
how this indicates that the tubing of Fanselow is inherently
heat set.
The examiner likewise does not make out a prima facie
case to sustain the alternative contention that it would have
been obvious to heat set Fanselow’s oriented tubing. No
factual basis is provided to support the conclusion of
obviousness. In re GPAC, Inc., 57 F.3d 1573, 1582, 35 USPQ2d
1116, 1123 (Fed. Cir. 1995) (a factual basis is required to
validate a claim rejection under § 103).
Accordingly, we will not sustain rejection (2).
Conclusion
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