Appeal No. 2003-0362
Application 09/439,973
some objective teaching, suggestion or motivation in the applied prior art taken as a whole and/or
knowledge generally available to one of ordinary skill in this art would have led that person to
the claimed invention as a whole, including each and every limitation of the claims, without
recourse to the teachings in appellant’s disclosure. See generally, In re Rouffet, 149 F.3d 1350,
1358, 47 USPQ2d 1453, 1458 (Fed. Cir. 1998); Pro-Mold and Tool Co. v. Great Lakes Plastics
Inc., 75 F.3d 1568, 1573, 37 USPQ2d 1626, 1629-30 (Fed. Cir. 1996); In re Oetiker, 977 F.2d
1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Fine, 837 F.2d 1071, 1074-76,
5 USPQ2d 1596, 1598-1600 (Fed. Cir. 1988); In re Dow Chem. Co., 837 F.2d 469, 473,
5 USPQ2d 1529, 1531-32 (Fed. Cir. 1988).
As an initial matter, we find that, when considered in light of the written description in
the specification as interpreted by one of ordinary skill in this art, see, e.g., In re Morris,
127 F.3d 1048, 1054-55, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997), the plain language of
appealed claim 1 specifies a tank comprising at least a multi-layer structure with its outer layer of
a polyolefin containing a non-halogen intumescent additive package in an amount sufficient to
prevent flammability. Thus, in giving these terms of the claim their broadest reasonable
interpretation consistent with the specification, we determine that the outer layer must be capable
of being characterized as a layer of polyolefin that contains as an additive a non-halogen
intumescent additive package which is a combination of compounds found in non-halogen
intumescent additives (specification, pages 4-6).
We find that the sole material which can be included in the high-density polyethylene
outer layer of the multi-layer molded tank taught by Takado is reground scrap of the same
multi-layered material used to mold the tank, which material is blended with virgin high-density
polyethylene, with the reference teaching that such material does not result in “the deterioration
of properties such as impact resistance” (col. 11, lines 27-33; see also col. 15, lines 1-4). Thus,
we agree with appellant that “[i]n fact, [Takado] fails to disclose any additive or additive package
in the outer layer and has no disclosure of any flame retardant” (brief, page 2; original emphasis
omitted).
We further find that, as pointed out by appellant (id., pages 3-8), von Bonin is drawn to a
porous or non-porous intumescent mass “containing carbonization auxiliaries, fillers, and
- 2 -
Page: Previous 1 2 3 4 5 Next
Last modified: November 3, 2007