Appeal No. 2002-0035
Application No. 08/861,918
that differ from the prior art by reciting a single-piece
vulcanized construction is improper if, as here, it sidesteps the
fact-intensive inquiry mandated by 35 U.S.C. § 103. In the
present case, one must determine if it would have been obvious to
one of ordinary skill in the art at the time the invention was
made to make Porter’s seal and carrier film as a single
vulcanized piece. Based on the evidence cited by the examiner
(i.e., the Porter reference), we cannot accept the examiner’s
bottom line conclusion that the differences between the subject
matter recited in claims 42 and 43 and Porter are such that the
claimed subject matter as a whole would have been obvious at the
time the invention was made to a person of ordinary skill in the
art.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103(a) rejection of claims 42 and 43 as being unpatentable over
Porter.
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