Appeal 2007-3258
Application 10/916,195
1 Goodyear argues that one skilled in the art would have to resort to
2 undue experimentation to determine which oxygen scavenging composition
3 could be used in a tire. Why? Cahill describes a layer which will scavenge
4 oxygen and there is no apparent reason why the same layer would not work
5 along with or in place of Katsuki's layer A to scavenge oxygen. Goodyear's
6 undue experimentation argument is not based on any evidence which would
7 support findings based on Ex parte Forman, 230 USPQ 546, 547 (Bd. Pat.
8 App. & Int. 1986) and In re Wands, 858 F.2d 731, 737, 8 USPQ2d 1400,
9 1404 (Fed. Cir. 1988).
10 Goodyear further argues that Cahill does not teach that its layers are
11 suitable for use as permeation resistant material—i.e., the function of layer
12 A of Katsuki. Accordingly, Goodyear reasons that one skilled in the art
13 would not replace layer A of Katsuki with the Cahill layer. Overlooked by
14 Goodyear's argument is that claim 1 uses the transition phrase "comprising"
15 and nothing in Katsuki would preclude the additional use of Cahill layer 30
16 in the Katsuki configuration. In Fig. 6, Katsuki describes a configuration
17 with seven layers so it is apparent that nothing in Katsuki limits its invention
18 to a three-layer embodiment. Further overlooked by Goodyear's argument is
19 the fact that both Katsuki layer A and Cahill layer 30 are polyester materials,
20 albeit different polyesters. Both seek to prevent oxygen from reaching
21 particular parts of the tire carcass.
22 We have considered Goodyear's remaining arguments and find none
23 that warrant reversal of the Examiner’s rejections. Cf. Hartman v.
24 Nicholson, 483 F.3d 1311, 1315 (Fed. Cir. 2007).
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