Appeal No. 2005-1298
Application No. 09/423,523
The examiner relies upon the following references as
evidence of unpatentability:
Tesch 4,047,327 Sep. 13, 1977
Flesher 5,506,024 Apr. 9, 1996
Werenicz et al. (Werenicz) 5,660,887 Aug. 26, 1997
Warzelhan et al. (Warzelhan) WO 9615174 A1 May 23, 1996
(Published World Intell. Prop. Org. Patent Application)
Claims 4 through 9 and 12 through 15 stand rejected under
35 U.S.C. § 103 as being obvious over Flesher or Werenicz or
Warzelhan, each in view of Tesch.
OPINION
We have carefully reviewed appellants’ brief and reply
brief and the answer and the evidence of record. This review
has led us to conclude that the examiner’s rejection is not
sustainable.
I. The 35 U.S.C. § 103 Rejection of claims 4-9 and 12-15
The examiner’s position for this rejection is set forth on
pages 3 through 4 of the answer. Appellants’ position regarding
this rejection is set forth on pages 2 through 6 of the brief,
and on pages 1 through 3 of the reply brief.
Essentially, the examiner relies upon Flesher, Werenicz, and
Warzelhan, for disclosing water vapor permeable films considered
to possess appellants’ claimed gas permeabilities. Appellants
do not dispute these findings made by the examiner. However,
appellants argue that there is no motivation to combine the
references as the examiner has done. Brief, page 4. Also,
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