Appeal No. 2003-0362
Application 09/439,973
optionally other auxiliary agents, obtainable by the reaction of polyisocyanates with isocyanate
reactive compounds, optionally containing phosphorous or boron in the presence of
polyepoxides” wherein the isocyanate provides the cross-linking to solidify the mass, which is
used for structural elements for fire resistant purposes either alone or in combination with other
ingredients (col. 1, line 56, to col. 2, line 8; and col. 7, lines 29-35). The applications taught in
von Bonin indeed use this material as a “mass,” inter alia, in the manufacture of molded articles
as well as forming coatings on plastic products such as fuel tanks, with the mass formed into
granulates which can be foamed to prepare molded bodies (e.g., col. 8, lines 14-45; and col. 9,
lines 6-38). We find no teaching or inference in the disclosure of von Bonin which would have
suggested to one of ordinary skill in this art that the intumescent masses can be used as additives
in the formation of a layer of polyolefin to form a molded product.3
Based on this evidence, we cannot agree with the examiner (answer, pages 3-9; Paper
No. 4, page 4) that the mere disclosure in von Bonin that the porous and non-porous intumescent
masses can be used to coat plastics, including fuel tanks, or molded foamed articles for fire
resistance purposes would have motivated a person of ordinary skill in this art to include such
material in the high-density polyethylene outer layer of the molded fuel taken of Takado, and
particularly since Takado does not teach that additives, other than from reground scrap of the
same material, can be used in preparing that layer. Thus, the applied references, separately and
as combined, fail to provide the necessary motivation and reasonable expectation of success
necessary to support the examiner’s position that the claimed tank encompassed by appealed
claim 1 would have been prima facie obvious over the combined teachings of the references.
See, e.g., Dow Chem., 837 F.2d at 473, 5 USPQ2d at 1531 (“The consistent criterion for
determination of obviousness is whether the prior art would have suggested to one of ordinary
skill in the art that [the claimed process] should be carried out and would have a reasonable
3 It is well settled that a reference stands for all of the specific teachings thereof as well as the
inferences one of ordinary skill in this art would have reasonably been expected to draw
therefrom, see Fritch, 972 F.2d at 1264-65, 23 USPQ2d at 1782-83; In re Preda, 401 F.2d 825,
826, 159 USPQ 342, 344 (CCPA 1968), presuming skill on the part of this person. In re Sovish,
769 F.2d 738, 743, 226 USPQ 771, 774 (Fed. Cir. 1985).
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