Appeal No. 2003-1705 Page 4
Application No. 09/904,058
Appellant, on the other hand, urges that the different
application of the foam sealing material in Quandt would not
suggest the formation of a sealing ring that is adapted for a
toilet seal from such foam material to an ordinarily skilled
artisan. In this regard, appellant asserts that there are
numerous factors requiring consideration in selecting a material
for the type of gasket here claimed, such as listed on page 6 of
the brief, and that the teachings of Quandt do not address those
considerations.
We find ourselves in agreement with appellant on this
record. While the examiner (answer, page 5) is correct that Izzi
teaches a sealing gasket that is suitable for a toilet seal
environment, the sealing gasket of Izzi is not made of
polyethylene foam. The examiner has not reasonably explained how
the teachings of Quandt with respect to tank seals made of
polyethylene foam coupled with Izzi’s general description of some
of the desirable properties of a sealing material for a toilet
seal environment would be suggestive of selecting polyethylene
foam as the material for the gasket of Izzi with a reasonable
expectation of success in so doing. See In re Dow Chemical Co.,
837 F.2d 469, 473, 5 USPQ2d 1529, 1531 (Fed. Cir. 1988). "Both
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