Appeal No. 2007-0484 8
limit compression along the axis denominated as thickness. The examiner's
reading of "thickness" to include the longitudinal dimension of the filler body
would strike a person having ordinary skill in the art as a stretch.
The main material layer 4 of Walendy's filler body, however, does extend
through all three dimensions. Moreover, the cut 2 in main material layer 4
effectively defines two sections (the top and bottom sections in Figure 1; the left
and right sections in Figure 2).
Ordinary level of skill in the art
We look to the evidence of record—the applicant's disclosure, the cited
references, and any declaration testimony—in resolving the ordinary level of skill
in the art.29 In this appeal no testimony is cited. We focus on what a person
having ordinary skill in the art would know and be able to do.
Dow's disclosure expressly describes the ordinary skill in the art several
times. It explains that those of skill would know "any of a number of means
suitable for joining together two panel domains including double sided tape, epoxy
or polyurethane adhesives, latex adhesives, hinges, and wires inserted into and
possibly through adjoining panel domains."30 They would also be able to prepare
strand foams of different compressive strengths.31 Finally, after consulting Dow's
disclosure, they would be able to conceive many different configurations.32
Walendy explains that selection of appropriate materials for, and installation
of, the filler body is within the ordinary skill in the art, usually through trial and
error, which in this art is "rapid", "simple", and "without effort worthy of
29 Ex parte Jud, 2006 WL 4080053 at *2 (BPAI) (rehearing with expanded panel).
30 Page 14:31-35 (emphasis added).
31 Page 17:3-5.
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