Appeal No. 2004-2196
Application 09/902,055
Moriarity in the grounds of rejection, to one of ordinary skill in this art at the time the claimed
invention was made.
Accordingly, since a prima facie case of obviousness has been established by the
examiner, we have again evaluated all of the evidence of obviousness and nonobviousness based
on the record as a whole, giving due consideration to the weight of appellants’ arguments and the
evidence in the submitted affidavit. See generally, In re Oetiker, 977 F.2d 1443, 1445,
24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785,
788 (Fed. Cir. 1984).
The principal issues in this appeal are whether Moriarity would have disclosed to one of
ordinary skill in this art a die meeting the limitations of appealed claim 1, and if so, whether the
combined teachings of Ludwig and Moriarity and of Bayer and Moriarity would have suggested
to one of ordinary skill in this art to use the die lip controls taught by Moriarity in the processes
of either or both of Ludwig and Bayer with a reasonable expectation of success.
With respect to the teachings of Moriarity, appellants submit that this combination does
not satisfy the claim limitations “the die body is bent transversely to the direction of travel of the
backing material and the bending is induced by temperature differences within the die body” in
appealed claim 1 (brief, page 3). Appellants point to the teaching at col. 6, ll. 24-61, and
FIGS. 2-3 of Moriarity (brief, pages 3-4), relied on by the examiner in the answer as establishing
that “[t]he die lip, which is an integral part of the die body is flexed (i.e., bent) transversely to the
direction of travel of the roll in multiple zones across the elongated portion (the longitudinal
direction) of the die – thus providing the bend of the die body . . . [that] can be induced by
temperature differences within the die body that come from multiple, separately controllable
heaters embedded within the die body” (answer, page 4). Appellants argue that in the cited
passage, “Moriarity makes no such assertion that flexing is equivalent to bending as is being
asserted by the examiner and does not indicate that the die body itself changes in any way” (brief,
page 4; bold portion of emphasis in original deleted). Appellants then contend that
Moriarity wishes to increase to [sic, the] rate of polymer flow through their dies and
accomplishes this by widening the size of their exit opening 126 by controlling the
temperature in the lip 114. Moriarity never characterizes this widening as being
equivalent to “the die body being bent transversely to the direction of travel of the
backing material.” Moreover, all of these changes in the exit opening size occur within
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