Appeal 2007-3918
Application 10/203,926
may be found in any number of sources, including common knowledge, the
prior art as a whole, or the nature of the problem itself.”); In re Bozek,
416 F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA 1969)(“Having
established that this knowledge was in the art, the examiner could then
properly rely, as put forth by the solicitor, on a conclusion of obviousness
‘from common knowledge and common sense of the person of ordinary skill
in the art without any specific hint or suggestion in a particular reference.’”).
Claims 1 through 3, 6, 8, 11 and 12 based on Gehlsen and Brennenstuhl.
As evidence of obviousness of the subject matter defined by claims 1
through 3, 6, 8, 11, and 12 under 35 U.S.C. § 103, the Examiner has relied
on the combined disclosures of Gehlsen and Brennenstuhl.2 The Examiner
has found, and the Appellants have not disputed, that:
[Gehlsen] discloses a composition comprising rubber mixed
with microcapsules and a method of making the composition
comprising the steps of mixing the rubber and the unexpanded
microcapsules and heating to expand the microcapsules.
(Compare Answer 7 with Br. 14). Indeed, we observe that Gehlsen teaches
that “[t]he polymer foam preferably includes a plurality of expandable
polymeric microspheres” (Gehlsen 4:29-30). We find that Gehlsen teaches
that the polymeric foam can be made of adhesive or non-adhesive materials
(Gehlsen 7:12-13, and 2:12-20). We find that Gehlsen teaches that “[t]he
particular resin is selected based upon the desired properties of the final
foam-containing article” (Gehlsen 11:8-9). We find that Gehlsen teaches
2 The Appellants have not supplied any substantive arguments for the
separate patentability of any specific claims. See, e.g., Br. 13-20. Therefore,
for purposes of this rejection, we focus our discussion on independent claim
1 only pursuant to 37 C.F.R. § 41.37(c)(1)(vii)(2006).
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