Appeal No. 2002-1409
Application 09/381,444
50, to col. 3, line 31; col. 3, lines 32-44; col. 4, lines 1-3; col. 5, line 68, to col. 6, line 32). We
find that Hampton discloses a molded refuse receptacle which is intended as a container for
handling household waste material, and that the walls of the receptacle would come into contact
with such waste even in view of the plastic liner to be used therewith through ordinary household
use. We further find that such waste would ordinarily contain or attract microorganisms
commonly found in the household, including those listed in each of Model and Dubin.
Consequently, we are of the opinion that the combination of Model, Dubin and Hampton
would have reasonably suggested to one of ordinary that the incorporation of the antimicrobial
phenols disclosed in Model and in Dubin into plastic materials used to prepare the molded
receptacle of Hampton would reasonably result in imparting antimicrobial properties to the
surfaces of the receptacle.
However, as appellant points out, the appealed claims require that the molding of the
container for handling household waste material be prepared by coextruding inner and outer
layers for the molded container wherein the phenol is associated with the “inner co-extruded
layer.”4 The examiner relies on Solomon to show that the co-extruded inner layer of medical
articles, including “tubing, bags and connectors” for body tissues and fluids, can contain
antimicrobial material (e.g., col. 2, lines 33-60; col. 3, line 48, to col. 4, line 8). We find that this
reference does not disclose that the coextruded layers are then molded to form an article.5
Therefore, the difficulty that we have with the examiner’s position is that it is not based
on any evidence which establishes that, prima facie, one of ordinary skill in this art would have
combined coextrusion and molding steps to prepare a molded article, such as the receptacle of
Hampton. Accordingly, in the absence of such evidence, the examiner has failed to make out a
Cir. 1992), presuming skill on the part of this person. In re Sovish, 769 F.2d 738, 743, 226
USPQ 771, 774 (Fed. Cir. 1985).
4 We point out that appealed claims 24 and 26 specify that the phenol is “applied on a co-
extruded layer” (emphasis supplied) while the basis for such language in the application as
originally filed, that is, cancelled original claims 11 and 12, reads “applied as a co-extruded layer
onto at least part of the surfaces containing plastic, particularly on the inner surface” (emphasis
supplied). The examiner should consider this matter upon any further prosecution of the appealed
claims subsequent to the disposition of this appeal.
5 A discussion of Khait is not necessary to our decision.
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