Appeal No. 98-2156 Page 6
Application No. 08/421,489
neither the grinding into powder of the starting resin nor 2
the employment of cross-linking agents" (footnote added). The
brief also states that
while certainly, Kimura teaches the advantages of
crosslinking for viscosity control during foam
formation, this still leaves open the fact
Applicant's claims, contrary to long-standing art
made of record in this case, are directed towards a
molded crosslinked polymer foam material, long after
any foam formation or manufacturing step, wherein
the hinge section is specifically said to comprise
compressed crosslinked foam material. Accordingly,
Kimura's teaching that crosslinking aids viscosity
control during foam formation to provide more
uniform pore structure would not lead one skilled in
the art to later mold and compress such crosslinked
foam into a compressed hinge section. [Pages 16 and
17.]
The appellant's arguments are not persuasive. While the
obviousness of an invention cannot be established by combining
the teachings of the prior art absent some teaching,
suggestion or incentive supporting the combination (see,
e.g., ACS Hospital Systems, Inc. v. Montefiore Hospital, 732
F.2d 1572, 1577, 221 USPQ 929, 933 (Fed. Cir. 1984)), this
does not mean that the cited references or prior art must
2Reference by Kiley to grinding of the polyethylene
starting resin into powder is made only with the respect to a
discussion of U.S. Pat. No. 4,738,810 in column 3, lines 9-15.
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