Appeal No. 2005-0058 Page 4
Application No. 09/821,802
We agree with appellants that, in this case, one of ordinary skill in the art would
not consider the underside 7 of Moriau’s floor panel to be the top or the locking element
33 to protrude from the top edge of the tongue as proposed by the examiner. Akin to
the situation in In re Gordon, 733 F.2d 900, 902, 221 USPQ2d 1125, 1127 (Fed. Cir.
1984), Moriau’s floor panel would be unsuitable for its intended purpose in the
orientation proposed by the examiner. As illustrated in Figure 7, the edge profiles of
Moriau’s floor panels are designed to ensure that the panels come together without
gaps at the upper surface (at decorative layer 55 and protective top layer 56) to achieve
the objective of Moriau to minimize the possibility of penetration of dirt and humidity
under the protective top layer (column 2, lines 8-12), while a gap is present between the
edges of the panels on the underside thereof. Additionally, the top surface, in the
orientation illustrated in Figures 5-7, not the underside 7, is provided with the decorative
layer 55 and protective top layer 56. For these reasons, a person of ordinary skill in the
flooring art would recognize that Moriau’s floor panel is orientation-critical and would
understand the top and underside of Moriau’s panel as illustrated in Figures 5-7, not the
underside and top, to be the top and bottom, respectively, of the panel.
For the foregoing reason, the examiner’s rejection of independent claim 13, as
well as dependent claims 2, 3, 5, 6, 10 and 11, as being anticipated by Moriau must fail.
The rejection is reversed.
The rejection of claim 12 as being unpatentable over Moriau in view of Roy is
also reversed. Even assuming that Roy would have suggested modification of the outer
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