Appeal No. 95-4846
Application 08/023,592
or using a nonobvious product must be treated as a material
limitation, and a motivation to make or use the nonobvious
product must be present in the prior art for a § 103 rejection
to be affirmed. See “Guidance on Treatment of Product and
Process Claims in light of In re Ochiai, In re Brouwer and
35 U.S.C. § 103(b)”, published at 1184 Off. Gaz. 86 on March 26,
1996.
We find no motivation presented in the prior art as applied
by the examiner. Hoppe teaches a propeller with the high
density, presumably less flexible polyurethane at the tips while
the inner portion contains the lower density, presumably more
flexible polyurethane (see Figure 14 and its description in
column 8). Trowbridge discloses an impeller of a single type of
polyethylene (column 1, lines 53-54, and column 3, lines 25-32).
Probst and Roberts do disclose molding one piece articles by use
of two compositions to provide varying properties but the
examiner has not pointed out, and we do not perceive, any reasons
or motivation for using the molding technique of Probst or
Roberts in the process of casting the propeller of Hoppe.
For the foregoing reasons, we find that the examiner has
failed to meet the initial burden of establishing a prima facie
case of obviousness. See In re Oetiker, 977 F.2d 1443, 1445,
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