Appeal No. 2006-0297
Application 09/861,716
15. The method according to claim 1, wherein a difference between the glass transition
point T1 of the first glass fiber and the glass transition point T2 of the second fiber is at least
400°C.
The references relied on by the examiner are:
Hmelar et al. (Hmelar) 5,729,643 Mar. 17, 1998
Conde et al. (Conde ‘090) 6,453,090 Sep. 17, 2002
(filed Jun. 28, 1999)
Conde et al. (Conde ‘265) WO 98/39265 Sep. 11, 1998
(published World Intellectual Property Organization Application)
The examiner further relies on “official notice” that “glass transition temperatures and
melting temperatures very similar features, and thus, one would expect that if two glasses have
significantly different melting temperatures, then they would have significantly different glass
transition temperatures,” which, as the examiner points out, has not been disputed by appellants
(answer, pages 3-4; see also Office action mailed November 18, 2004). This we consider the
examiner’s finding as fact. See In re Ahlert, 424 F.2d 1088, 1091, 165 USPQ 418, 421 (CCPA
1970) ("Where the appellant has failed to challenge a fact judicially noticed and it is clear that he
has been amply apprised of such finding so as to have the opportunity to make such challenge,
the board's finding will be considered conclusive by this court.").
The examiner has rejected appealed claims 1 through 6 and 9 through 16 under 35 U.S.C.
§ 103(a) as being unpatentable over Hmelar and official notice (answer, pages 4-7), and as being
unpatentable over Hmelar and official notice in view of Conde ‘090 (answer, pages 7-8).1, , 2 3
Appellants specifically argue claims 1 and 15 with respect to each ground of rejection,
and accordingly, we decide this appeal based on these claims. 37 CFR § 41.37(c)(1)(vii)
(September 2004).
1 The grounds of rejection as set forth in the answer are directed to “[c]laims 1-7 and 9-13”
which, as appellants point out in the reply brief, is harmless typographical error, discernible, we
find, from the claims discussed in the statement of the first ground of rejection.
2 The second ground of rejection is stated as relying on Conde ‘265 with Conde ‘090 being a
translation thereof as both are in the same patent family. See answer, page 7; brief, page 4; final
action mailed November 18, 2004, page 5. We determine that Conde ‘090 is in fact prior art to
the claimed invention under 35 U.S.C. § 102(e) (1975) as of Jun. 28, 1999, and thus, is the
applied reference and is so discussed by the examiner and appellants (brief, e.g., pages 4 and 8).
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