Appeal No. 2007-0196 10
Reexamination Control No. 95/000,009
In this case, looking at the Chen content alone, the difference is clear:
Congoleum claims a specific "texture-producing particle" within Chen's broad
range of possible wear-resistant particles that provide texture. From Chen we
know that those skilled in the art are sophisticated enough to choose from this
selection with little guidance and to test their selections to ensure that they work.
We have no indication that wear-resistant particle selection is unpredictable;
indeed, Chen treats the alternatives as fungible. Given this fungibility, one of skill
in the art might choose 60 μm nylon 12 for just about any reason at all, including
availability, cost, color choices, etc. In view of Chen alone, a person having
ordinary skill in the art would have considered 60 μm nylon 12 particles to have
been an obvious choice.
A coupling agent comprising prehydrolyzed silane
This limitation comes from Congoleum's claim 1. No other independent
claim requires any coupling agent. Claims 12 and 16 (depending from independent
claims 10 and 14, respectively) require only a "coupling agent" with no further
detail. Congoleum discusses the use of a coupling agent with the rheological
control agent ("RCA") in very broad terms, as though a person having ordinary
skill in the art would already be familiar with the use of coupling agents in this
context. For instance, in discussing the use of 27-56 nm alumina as the RCA
(6:62-66), Congoleum notes in passing:
Most preferred is nanometer-sized alumina with a particle size range
of 27-56 nm due to the enhanced cured coating transparency afforded
by such small particles when they are well-dispersed (e.g., through the
use of an appropriate amount and type of coupling agent).
Similarly, in the next column (7:41-59), Congoleum leaves broad discretion to the
reader to select an appropriate coupling agent:
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