Appeal No. 1997-2071
Application No. 08/336,529
It would have been obvious to one of ordinary skill
in the art at the time the invention was made to use
the fibers, antimicrobial fibers, of Morrison ‘853
in Goldfein and produce the claimed reinforced concrete
product because each reference suggests the same
kind of fibers with about the same length which are
known to reinforce concrete compositions but those
fibers of Morrison ‘853 are antimicrobial and would
be expected to function as fungicides in the claimed
composition of applicant. (Answer, page 5).
We agree with appellant’s argument that the examiner has
failed to present any motivation, teaching or suggestion to
combine the references as proposed (Brief, page 5). In re
Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed. Cir.
1999); In re Rouffet, 149 F.3d 1350, 1356, 47 USPQ2d 1453,
1456 (Fed. Cir. 1998). Whether the evidence of a teaching or
suggestion to combine comes from the references themselves,
the knowledge of one of ordinary skill in the art, or from the
nature of the problem to be solved, the showing of evidence
must be clear and particular. Dembiczak, 175 F.3d at 999, 50
USPQ2d at 1617. Morrison ‘556 discloses the use of
antimicrobial synthetic fibers with natural fibers in
producing garments where the antimicrobial agent will transfer
from the synthetic to the natural fiber (column 2, lines 14-
34). Morrison ‘853 is a variation of Morrison ‘556 (see
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