Appeal No. 2000-0583
Application No. 08/955,984
prepared in accordance with the method steps recited in claim
29, namely, with the extruded tube being dried to a moisture
content as claimed and subsequently (either immediately or
after storage for some period of time) expanded.11
In light of the above, we shall sustain the examiner's
rejection of claims 27-30 under 35 U.S.C. § 103 as being
unpatentable over Levy.
Claims 14 and 15
Claims 14 and 15, like claims 1 and 27, are drafted in
product-by-process form and focus on another aspect of
appellants' invention, namely, subjecting the tubing to a
relatively lower pressure while the body portion is blown than
while the first and second waist portions are blown. This
aspect of appellants' invention, referred to by appellants as
11In the event that appellants were to amend their claims to expressly
specify the moisture content of the tube at the time of expansion and prove
that Levy's balloon is not the same as any balloon made by such a method,
appellants and the examiner may wish to consider whether controlling the
moisture content of the extruded tube to the levels recited in claims 2-4 and
29 at the time of expansion (e.g., by drying the PET prior to extrusion and
expanding immediately after extrusion) would have been obvious to one of
ordinary skill in the art as routine optimization of an art-recognized result-
effective variable, in light of the admitted recognition in the art at the
time of appellants' invention of the importance of moisture content to the
balloon-making process (see the paragraphs bridging pages 2-3 and 6-7 of
appellants' specification). See In re Boesch, 617 F.2d 272, 276, 205 USPQ
215, 219 (CCPA 1980) and In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235
(CCPA 1955).
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