Appeal 2007-3794
Application 10/850,517
error in his factual reasons for concluding that the claimed invention is
obvious over the applied prior art.
Finally, Appellants contend that further enhancing the moisture
resistance of the composite boards of either Geary or Bondoc would
needlessly add production cost (First Reply Br.5 4-5; Second Reply Br.6 4).
Appellants further contend that applying a water based silicone emulsion to
the facer of Bondoc might potentially effect the permeability of Bondoc's
facer. As discussed above, unsupported attorney argument is not persuasive
of Examiner error. Furthermore, production cost, while a consideration in
some cases, is not determinative of patentability per se. Here, for example,
Geary suggests expending additional production cost to further enhance the
moisture resistance of its composite board (FF 13).
In summary, Appellants have done little more than combine known
prior art elements in a known manner to yield predictable results.
Specifically, Appellants have combined a known foam board material
having a cellulosic facing and a known waterproofing agent, silane, and
achieved a predictable result, production of a more waterproof foam board.
A person of ordinary skill in the art, however, uses known elements and
process steps for their intended purpose. Anderson's-Black Rock, Inc. v.
Pavement Storage Co., 396 U.S. 57 (1969) (radiant-heat burner used for its
intended purpose in combination with a spreader and a tamper and screed).
Therefore, based on the foregoing, we affirm the rejection of claims 1-
4 and 6-10 under § 103(a) as obvious over Geary in view of Gill as
5 Reply Brief filed 8 February 2007 ("First Reply Br.").
6 Reply Brief filed 23 April 2007 ("Second Reply Br.").
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