Appeal No. 2006-0972
Application No. 10/380,280
examiner’s Section 102/103 rejection is not well founded.
Accordingly, we reverse the examiner’s rejection for essentially
the reasons set forth in the Brief and the Reply Brief. We add
the following primarily for emphasis and completeness.
The examiner recognizes that “Shmidt does not specifically
disclose the foam having a content of organic volatile matters of
less than 100 ppm.” See the Answer, page 3. The examiner,
however, takes the position (id.) that:
It appears that Shmidt uses the same materials to form
the polystyrene foam. Further, the amount of the
blowing agent is used within the range disclosed in the
specification. The foam product of Shmidt meets all
the structural limitations as required by the claims;
i.e., cell size, foam density, open cell ratio, and
thickness. Therefore, it is not seen that the content
of the volatile organic matters would be outside the
claimed range when the two products are produced from
the same raw materials. Accordingly,...the content of
the volatile organic matters would be inherently
present.
We do not subscribe to the examiner’s position.
As indicated supra, the fact that polystyrene foams are made
from the same raw material or has the same structural properties
does not indicate that they have the same organic volatile
content. As is apparent from pages 14, 15, 37 and 38 of the
specification, the examiner must demonstrate that either the raw
material employed has a very low organic volatile content and/or
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