Appeal No. 2002-1749
Application No. 09/395,270
In rejecting this claim, the examiner relies on Murphy for
its showing of a rug underlay made of a non-woven material.
Concerning the thickness range called for in the claim, the
examiner states (answer, page 5) that “[i]f one were experiencing
a lack of stability of the backing, merely increasing the
thickness of the backing would have been well within the purview
of one of ordinary skill in the art.” Appellant counters (brief,
page 8) that none of the cited references teaches a spun-bonded,
non-woven fabric with a thickness of approximately 8 mils, that
such a fabric is not an obvious design choice, and that the
particular fabric and thickness are important to appellant’s
invention.
The appellant’s position is well taken. First, the underlay
of Wyman would have to be made thinner, rather than thicker as
implied by the examiner, in order to conform to the thickness of
approximately 8 mils called for in the claim. In any event, the
applied prior art does not disclose, suggest or teach the claimed
fabric with the claimed thickness, and, for the reasons explained
above in our treatment of claim 10, the claimed thickness cannot
be dismissed as a matter of design choice.
Accordingly, we shall not sustain the rejection of claim 9
as being unpatentable over Wyman in view of SIGA and Murphy.
9
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