Appeal No. 2004-2354
Application No. 09/923,991 Page 17
17). In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA
1966).
Conspicuously missing from the examiner’s analysis, however,
is any explanation as to how (and why) one of ordinary skill in
the art would have modified the viscous liquid and foam filled
enclosure of Jordan to include the gas filled tubular members of
Moore together therewith so as to result in a product
corresponding to appellant’s claimed subject matter that includes
a viscous liquid in the enclosure in addition to a plurality of
the claimed matrix elements. Indeed, as argued by appellant in
the brief (page 9), the tubular members of Moore would appear to
be incompatible with the liquid and foam filled structure of
Jordan. Here, the examiner has not discharged the burden of
developing, prima facie, a persuasive rationale based on the
evidence of record that would have led one of ordinary skill in
the art to the claimed subject matter from a combination of the
disparate teachings of Moore and Jordan.
Consequently, we shall reverse the examiner’s § 103(a)
rejection of claims 5, 6, 11, 13, 15 and 17 over Jordan and
Moore.
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