Appeal 2007-2358
Reexamination Control No. 90/006,888
Anticipation
Claimed subject matter is not patentable if is was "described in a
printed publication . . . more than one year prior to the date of the
application for patent in the United States." 35 U.S.C. § 102(b). A claim is
anticipated if all the limitations are fully described, explicitly or inherently
in a prior art reference. In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d
1429, 1431 (1997). Moreover, it is well settled that the recitation of a new
intended use for an old product does not make a claim to that old product
patentable. Id.
For the reasons given supra, we need consider only claim 1.
The "relatively flexible coextruded plastic tube" recited in claim 1
consists essentially of an "inner portion being formed from a highly
lubricous polymeric material" and an "outer portion being formed from a
high tensile strength polymeric material." The 442 specification teaches that
"highly lubricous polymeric materials" include TeflonŽ , which is
commonly recognized as a registered trademark used by E.I. DuPont de
Nemours and Company in association with fluoropolymer resins (originally
polytetrafluoroethylene). (442 patent at 3:56–60.) Claim 1 further requires
that the highly lubricous polymers provide an "inner surface for the tube
which has a low coefficient of friction to enable substantially low friction
placement of the cable therewithin." According to Claim 1, the outer portion
of the tube is formed from "a high tensile strength polymeric material."
According to Claim 1, the purpose of the outer portion is to maintain the
structure integrity of the tube, thereby defining a "protective housing for the
cable." The 442 patent teaches that the outer layer of the tube can be a high
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