Appeal No. 1998-2732
Application No. 08/244,163
in the art. (Specification, pages 2-3.) Also, the examiner’s
characterization of Preto on page 4 of the examiner’s answer is
incomplete because it fails to mention, much less account for,
the teaching in the reference that the blend of the polyolefin
and the synthetic linear polyamide must be heated at a
temperature between about 140°F and 250°F for a period between
about 0.1 minute and about 30 minutes to effect the disclosed
impermeability property. (Column 2, lines 28-37.) Nor does the
examiner’s rejection clearly acknowledge that Preto does not
teach a tube.
As to the examiner’s conclusion of obviousness, it is
important to emphasize that both the suggestion to combine the
references and the reasonable expectation of success must be
founded in the prior art, not from the appellants’ own
disclosure. In re Vaeck, 947 F.2d 488, 493, 20 USPQ2d 1438,
1442 (Fed. Cir. 1991) (citing In re Dow Chemical Co., 837 F.2d
469, 473, 5 USPQ2d 1529, 1531 (Fed. Cir. 1988)).
Here, the examiner has not pointed to any evidence that
would have suggested to one of ordinary skill in the art that
Preto’s polyolefin/polyamide blend can be coextruded as a
barrier layer having the recited characteristics together with a
polyethylene to form a tube. In this regard, the broad teaching
6
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: November 3, 2007