Appeal No. 98-2156 Page 5
Application No. 08/421,489
a hinge section, comprised of compressed foam and
capable of repeated articulation (see col. 5 lines
58-61 and col. 6 lines 30-34 of Kiley). Kimura et
al. teach that it is known to crosslink polymer
foam. As modified by the crosslinking of Kimura et
al., the container of Kiley teaches [sic] a
crosslinked polymer foam container having a
compressed crosslinked foam hinge section. [Page
10.]
The appellant begins the argument in the brief by citing
a decision identified as "Ex parte Martha, Appeal No. 94-3760"
(see page 13). However, Martha, as recognized by the
appellant, is an unpublished decision by the Board.
Unpublished Board opinions are not binding as precedent (Ex
parte Holt, 19 USPQ2d 1211, 1214 (Bd. Pat. App. & Int. 1991))
and citing such a decision as precedent is improper and
inappropriate (see Ex parte Vossen, 155 USPQ 109, 110 (Bd.
App. 1967)).
The appellant argues that there is no suggestion to
combine the teachings of Kiley and Kimura as the examiner
proposes. This is particularly the case since, in the
appellant's view, Kiley went out of his way to dissuade those
skilled in the art from using cross-linked foam by stating in
lines 15-18 of column 3 that "the present invention requires
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007