Appeal No. 2003-1293 4
Application No. 09/675,739
column 3, line 13. Significantly however, the preferred embodiment of Miller’s invention
is directed to mixtures of the two thermoplastic polymers, i.e., Surlyn and ethylene vinyl
acetate. See column 3, lines 14 to 31 and claims 1 to 4.
McClure is likewise directed to the preparation of baseballs and softballs. The
patentee discloses that, “the core can be molded from a variety of products, depending
upon the type of ball being manufactured, including rubber, thermoplastic, thermoset or
polyurethane.” See column 3, lines 19-22. As we noted above the examiner combined
Miller with McClure and stated the obviousness of using a thermoset material in place of
the thermoplastic materials of Miller.
Even if the examiner’s assertion had been correct, the claimed subject matter before
us requires that the core be comprised of, “a cross-linked thermoset elastomeric material.”
See claim 1. Miller, as we found above is directed exclusively to thermoplastic materials.
In contrast, the materials described by McClure include both rubber and thermoset
materials. A thermoset material neither teaches nor suggests that the material is
elastomeric, or necessarily crosslinked. It merely requires that a substance such as a plastic
becomes permanently rigid usually by application of heat. As for rubber, it is customarily
elastomeric. There is however, no requirement that rubber is either cross-linked or
thermoset.
Based upon the above considerations, even if the examiner was correct in
combining Miller and McClure in the manner described supra, the requisite article would
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