Appeal No. 2002-0693
Application No. 09/073,686
functioning of a flame-proofed EPDM sheeting, there is simply no
evidence of record to support the appellants’ position that the
prior art did not function in the manner as instantly claimed. As
noted above, given the nearly identical nature of the prior art
with that instantly claimed, the burden shifts to the appellants
to prove otherwise.
The appellants note that relatively high levels of non-
combustible mineral fillers, relatively low process oil loading,
and the presence of a flame retardant package give the claimed
results, i.e. steep roof flame resistance (Appeal Brief, page 13,
lines 8-20). The appellants also note that the addition of a
flame retardant filler to Davis, without other modifications
including processing oil, is improper as those of skill in the art
know that the addition of processing oil is necessary when
additional filler is added. (Appeal Brief, page 13, lines 21-32).
These arguments lack persuasiveness due to the broad ranges
claimed instantly. The ranges of the prior art are the same, or
abut, the instantly claimed ranges and consequently the instant
ranges are found to have been obvious in view of the prior art. It
then is up to the appellants to show that the prior art could not
act as instantly claimed (being “capable of” passing the test,
calenderable, or would fail a high slope test). This would
9
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007