Appeal No. 2003-1572
Application No. 09/661,747
size and lower in a mixture of particles having similar high
resiliency ratings (column 8, lines 30-42). The examiner does not
assert, and it is not apparent to us, that the filler materials
disclosed in Chuang (buckwheat hull, either alone or mixed with
far-infrared ray emitting particles) would be suitable for
Kellogg’s purposes. Moreover, we see no basis for concluding that
the buckwheat hulls, either alone or mixed with far-infrared ray
emitting particles, are necessarily “art recognized equivalents” of
the particle mixtures seen in Kellogg, as asserted by the examiner,
or that the filler materials disclosed in Chuang would necessarily
provide the network of high pressure areas and low pressure
channels sought by Kellogg if substituted into Kellogg’s device.1
Thus, the examiner’s rejection of claims 7-14 under 35 U.S.C. § 103
will not be sustained.
New Rejection under 37 CFR § 1.196(b)
Pursuant to our authority under 37 CFR § 1.196(b), we enter
the following new ground of rejection.
1Even if functional equivalence were established, it would
not be dispositive of the obviousness issue at bar because
expedients which are functionally equivalent to each other are
not necessarily obvious in view of one another. In re Scott, 323
F.2d 1016, 1019, 139 USPQ 297, 299 (CCPA 1963).
7
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