Appeal 2007-3962
Application 10/005,846
20, 2007 and Appellants’ contentions presented in the Reply Brief of June
29, 2007.
Upon reviewing the issues on appeal, we determine that the Examiner
has established a prima facie case of unpatentability with respect to the
subject matter of claims 1 and 8, but not for the subject matter of claim 9.
Therefore we sustain the rejection of claims 1-8, but do not sustain the
rejection of claims 9-11. Our reasons follow.
II. DISCUSSION
Claim 1
Claim 1, according to its preamble, is directed to “[a] method of
improving the mechanical strength of a membrane.” The claim, in its body,
recites a single step of “providing a microporous sheet.” The sheet
comprises a blend of an aliphatic polyolefin and a thermoplastic olefin
elastomer from a particular group with the elastomer present in a particular
range of concentrations.
Appellants admit that the microporous sheet comprising the claimed
blend of polyolefin and elastomer is “a known composition of matter or
material.” (Reply Br. 9). But they contend that their claims are “drawn as
method claims to a new use of a known composition of matter or material.”
(Reply Br. 8; see also Reply Br. 13). According to Appellants, Kondo does
not address the problem of increasing mechanical strength of a membrane by
blending elastomer into the polyolefin (Reply Br. 13).
The Examiner contends that the claim does not require an
improvement arising from blending elastomer into the polyolefin (Answer
4
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