Appeal No. 2002-1567 Page 5
Application No. 09/197,729
percentage and recovery percentage properties set forth in
representative claim 1. We agree.
Appellants argue, in effect, that the examiner has not
established, prima facie, that one of ordinary skill in the art
would have been led to employ the teachings of Ashcraft in
combination with Aylward and that the voided biaxially oriented
sheet containing photographic element of Aylward would not, in
fact, possess the cushioning properties (compression percentage
and recovery percentage) as recited in representative appealed
claim 1. See pages 3-6 of the brief and the reply brief. We
disagree with those contentions of appellants.
As for the combinableness of Ashcraft with Aylward, we note
that the incorporation by reference of the disclosure of Ashcraft
in Aylward makes plain that Ashcraft’s description of the voided
sheet is not only combinable with but part of the disclosure of
Aylward. Moreover, we note that the functional characteristics
that appellants recite for the claimed product do not serve to
distinguish the claimed product from the applied prior art given
the commonalities between Aylward’s patent and appellants’
specification in describing how a voided layer is constructed.
Whether a rejection is under 35 U.S.C. § 102 or § 103, when
appellants* product and that of the prior art appears to be
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