Appeal No. 2002-0693
Application No. 09/073,686
While we accept that Mr. Davis is of skill in the art
(paragraphs 2 and 3) and that he is familiar with the subject
matter of the prior art and the instant claims (paragraphs 5 and
6) we do not accept his legal conclusion regarding the teachings
of Davis as “expressly excluding all fire retardant packages”
(paragraph 7) for the reasons noted above.
We first question the final sentence of paragraph 6 of the
declaration which states that the “preferred composition of Davis
‘550 was initially employed on high sloped roofs, but did not pass
the UL 790 burn test.” Where in Davis is this stated? If this is
not stated in Davis, where is the evidence supporting this factual
statement?
Paragraph 7 makes a persuasive conclusion - “In the
compositions produced by Davis ‘550, simply adding a flame
retardant package did not produce the desired results.” However,
the conclusion lacks any objective evidence to support it.
Paragraph 8 is likewise flawed. Although it states “Any
composition produced as set forth in Davis ‘550 (or Valaitis)
would not pass the UL 790 burn test for sloped roofs of greater
than one inch per linear foot and would not provide the necessary
LOI rating of 40 percent oxygen” we are again left without the
evidence upon which this conclusion is founded.
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