Appeal No. 2005-1298
Application No. 09/423,523
Tesch discloses mulch sheeting that is also suitable for
use as compost sheeting. Tesch discloses the sheeting was made
of either a polymeric film or fibrous material. (Col. 6, ll.
43-52). Tesch discloses the mulch sheeting was developed to
address the problems associated with air transfer recognized in
previous mulch sheets. (Paragraph bridging columns 2-3). Tesch
discloses that “air permeability is provided in the polymeric
sheet by precisely controlled slitting operation or in the
fibrous sheet by control of, for example, the degree of
compression during fabrication.” (Col. 3, ll. 65-68). Tesch
recognizes that the use of slits in the mulch sheet also allows
the permeability to rain. (Col. 5, ll. 49-52). However, in the
discussion of the composting embodiment, Tesch discloses the use
of slits is optional. Specifically, Tesch discloses “[s]hould
the air permeability of the fibrous mulch sheets by [sic, be]
insufficient, they too may be slit.” (Col. 6, ll. 65-66).
Thus, Tesch recognizes that when the sheeting is used for
composing the use of slits is optional.
Appellants have not disputed the Examiner’s finding that
the permeable films of Flesher have the characteristics of the
film required by the presently claimed invention. Flesher
discloses permeable films that possess air/gas permeability
characteristics recognized by persons of ordinary skill in the
art to be desired in mulch/compost sheeting. Thus, the air/gas
permeable films of Flesher and Tesch are functionally
equivalent. “Express suggestion to substitute one equivalent
for another need not be present to render such substitution
obvious.” In re Fout, 675 F.2d 297, 301, 213 USPQ 532, 536
(CCPA 1982). A person of ordinary skill in the art would have
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