Appeal 2006-3149
Application 09/864,478
and a cushion layer of polyurethane foam. The patents are silent with
respect to the face weight of the primary carpet and disclose values for the
weight and density of the polyurethane foam slightly outside the claimed
ranges. However, as explained by the Examiner, Porter evidences that it was
known in the art to have a polyurethane foam-backed primary carpet having
a face weight of 14 oz/yd2, which value is directly within the claimed range.
Also, we fully concur with the Examiner that there is no patentable
distinction between Higgins’ polyurethane foam weight of about 10 oz/yd2
and Appellants’ about 8.24 oz/yd2. Likewise, we agree with the Examiner
that there is no patentable distinction between Higgins’ polyurethane foam
density of about 12 lbs./per cubic foot and Appellants’ about 10 lbs./per
cubic foot. It is well settled that the term “about” allows for some variance,
and Appellants’ claimed values of about 8.24 and about 10 do not
distinguish over the reference values of about 10 and about 12, respectively.
See In re DeVaney, 185 F.2d 679, 683, 88 USPQ 97, 101 (CCPA 1950);
In re Ayers, 154 F.2d 182, 185, 69 USPQ 109, 112 (CCPA 1946).
Moreover, to the extent there is any real distinction between the
claimed and reference values for weight and density, we agree with the
Examiner that the values are so close that one of ordinary skill in the art
would have reasonably expected the polyurethane foams of Higgins having a
weight of 10 oz/yd2 and a density of 12 lbs./cubic foot to possess physical
characteristics or properties that are essentially the same as those associated
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