Appeal No. 2005-1298
Application No. 09/423,523
reasonably expected that the air/gas permeable films of Flesher
could be used as an air/gas permeable film for the composting
process of Tesch. “For obviousness under § 103, all that is
required is a reasonable expectation of success.” In re
O’Farrell, 853 F.2d 894, 904, 7 USPQ2d 1673, 1681 (Fed. Cir.
1988).
Appellants argue that the fibrous sheet of Tesch is not
equivalent to the materials of Flesher. (Brief, p. 4). I do
not agree. The fibrous material of Tesch and the polymeric
material of Flesher possess air/gas permeability
characteristics. Thus, the materials are functionally
equivalent.
Appellants argue that Tesch teaches that the use of slits
is “necessary” where gas permeability is desired in a polymer
sheet. (Brief, p. 3). This argument is not persuasive.
Appellants appear to be referring to the portion of the Tesch
reference, column 4 lines 58 to 61, which states:
“When the polymeric film of, for example, polyethylene is
employed it is desirable, if not necessary, to appropriately
slit the web to allow appropriate transfer of gases above and
beneath the plane of the mulch sheet.” (Underlining added).
This portion of the Tesch reference would have suggested to a
person of ordinary skill in the art that the use of slits is
optional, and would depend upon the property of the polymeric
film. Note that Tesch also teaches that the use of slits is
optional when using the fibrous material. (Col. 6, ll. 65-6).
“[I]n a section 103 inquiry, ‘the fact that a specific
[embodiment] is taught to be preferred is not controlling, since
all disclosures of the prior art, including unpreferred
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