Appeal No. 2002-0983
Application No. 09/399,890
analysis under § 103 requires, inter alia, consideration of two
factors: (1) whether the prior art would have suggested to those
of ordinary skill in the art that they should make the claimed
composition or device, or carry out the claimed process; and (2)
whether the prior art would also have revealed that in so making
or carrying out, those of ordinary skill would have a reasonable
expectation of success.” In re Vaeck, 947 F.2d 488, 493, 20
USPQ2d 1438, 1442 (Fed. Cir. 1991)(citing In re Dow Chemical
Co., 837 F.2d 469, 473, 5 USPQ2d 1529, 1531 (Fed. Cir. 1988).
Both the suggestion and the reasonable expectation must be
founded in the prior art, not in the applicant’s disclosure.
Id. In the present appeal, it is our judgment that neither the
suggestion nor the reasonable expectation of success is founded
in the prior art.
Doyle describes a coated substrate, which is useful as a
building wrap, having a moisture vapor transmission rate (MVTR)
greater than about 5 perms and comprising: a substrate; a
monolithic, extrusion coated layer of a breathable polymer; and
a primer layer intermediate and adhered to the substrate and the
monolithic, extrusion coated breathable polymer layer. (Column
1, lines 14-55.) According to Doyle, suitable substrates
include open weave fabrics. (Column 2, lines 56-62.) Doyle
further teaches that the primer layer, which is a polyamine or a
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