Appeal No. 2004-1118
Application No. 09/619,873
reference evidence fails to establish a prima facie case of
obviousness with respect to this proposed replacement.
Similar deficiencies are present in other aspects of the
examiner’s obviousness position. As an example, in order to
achieve the laminate of independent claim 17, the examiner
proposes replacing Okey’s polyimide foam with Allen’s
polyurethane foam while retaining the aluminum foil, which Okey
adheres to his foam, and then providing this aluminum foil with a
fabric layer of the type taught by Allen. Again, Okey explicitly
teaches that his combination of polyimide foam and metal foil
provides unexpectedly superior characteristics (e.g., see the
paragraph bridging columns 1 and 2), and the applied prior art
contains no indication that the examiner’s proposed combination
of polyurethane foam and metal foil also would possess such
characteristics. Indeed, on this record, the only apparent
motivation for replacing Okey’s foam while retaining his metal
foil is based on the hindsight-desire to replicate the
appellants’ claimed invention. Analogous reasoning applies to
the examiner’s proposed application of Allen’s fabric layer to
the metal foil of Okey. This is because the fabric layer of
Allen is not applied to a metal foil of any kind, and therefore
it is only the appellants who teach doing so.
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