Appeal 2007-1313
Application 10/162,098
THE REJECTION
The Examiner relies upon the following as evidence of unpatentability:
Hoshizaki US 4,835,885 Jun. 6, 1989
Gabrielli EP 0 629 358 A1 Dec. 21, 1994
Claims 6-9 stand rejected under 35 U.S.C. § 103(a) as unpatentable over
Gabrielli and Hoshizaki.
ISSUE
The issue before us is whether the combination of Gabrielli and Hoshizaki
would have led one having ordinary skill in the art at the time of the invention to
the subject matter of claim 6. In particular, the issue focuses on whether Gabrielli
discloses an air space between upper and lower layers of a tongue structure and
whether there would have been a reason to make the lower layer of Gabrielli’s
tongue structure from a resilient stretchable material in view of Hoshizaki.
FINDINGS OF FACT
We find that the following enumerated findings are supported by at least a
preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427,
7 USPQ2d 1152, 1156 (Fed. Cir. 1988) (explaining the general evidentiary
standard for proceedings before the Office).
1. Gabrielli discloses a “tongue 16 with an internal lining 64 welded to a
waterproof layer 66 to form the tongue pocket 36 to be filled by
silicone 68” (Gabrielli, col. 4, ll. 6-9).
3
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