Appeal No. 2005-0279
Application No. 10/036,708
describes a tie layer of elastomeric material whereas patentee
discloses a flexible adhesive layer but considers these layers to
be indistinguishable because appellants’ elastomeric material and
patentee’s flexible adhesive may in each case be an acrylic based
material (cf., the last paragraph on page 8 of the subject
specification and lines 9-15 in column 4 of the applied
reference).2 In addition, although Wynne does not disclose that
his various layers and reinforcing grid are extrusion laminated
together to form the reinforced shrink wrap as recited in
appealed claim 1, the examiner nevertheless reaches an
unpatentability determination on the grounds that the ultimate
products disclosed by Wynne and defined by claim 1 appear to be
identical. In support of this determination, the examiner cites,
for example, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966
(Fed. Cir. 1985).
2
2It is here appropriate to emphasize that the appellants (unlike the
examiner) are well positioned to determine whether the flexible
adhesive used by Wynne is encompassed by the elastomeric material tie
layer of claim 1 since the real party of interest for the subject
application (see page 1 of the brief) and the Wynne patent (see the
title page) is the same, namely, Reef Industries, Inc. Indeed, the
inventive entities listed for the subject application and the Wynne
patent include a common inventor (i.e., Dennis Olheiser).
4
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007