Appeal No. 1998-1002
Application No. 08/390,175
the others as no mixing of the dyes in the particles occurs.
This disclosure, however, is in direct contrast to the
requirements of the claimed subject matter that, “an aggregate
mixture of the sheeting and embedded particles has an over-all
color that approximately equals the first color of the
sheeting material.”
Moreover, on the record before us, there is no rationale
presented why the person having ordinary skill in the art
would substitute the elastomeric floor coverings of Heckel for
the thermoplastic floor covering of Sachs, or why would one
choose the requisite dyes in Heckel in such a manner so as to
result in overall color approximately the same as the sheeting
material as required by the claimed subject matter.
Accordingly, even if the substitution was made, we still would
not obtain the invention of the claimed subject matter, as
contrasting colors would be obtained contrary to the
requirements of the claimed subject matter.
Based upon the above considerations, even if the examiner
was correct in combining Sachs, Gembinski, Charlton and Heckel
in the manner supra, the structure created would, in any
event, fall short of the invention defined by the claimed
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