Appeal No. 2002-0693
Application No. 09/073,686
Paragraph 9 states that a current premium product
(unidentified, either by trade name or composition) contains a
flame-retardant package but does not have 40 percent non-
combustibles and therefore has an LOI of 27-30 percent oxygen. We
give this statement very little weight for the same reasons as
paragraphs 6, 7, and 8.
Paragraphs 10, 11, and 12 similarly conclude that adding
flame retardants into Davis or Valaitis would give a composition
which would not be calenderable, or would not contain 40 percent
non combustibles, or would not pass a UL 790 burn test, or would
not yield a 40 % LOI (all statements are again made without
pointing to any evidence in the record).
We therefore conclude that this declaration is insufficient
to overcome the prima facie case of obviousness.
The appellants contend in their brief that the examiner has
incorrectly disregarded the LOI ratings (burn resistivity
measurements) as demonstrating any patentable distinction between
the roofing covering composition of Davis and the fire retardant
roof sheeting membrane of the appellants. (Appeal Brief, page 7,
lines 13 - 16).
While we note that the difference in performance between
flat, low slope and high slope roofs may be critical to the
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