Appeal No. 2005-1298
Application No. 09/423,523
embodiments, must be considered.’” Merck & Co. Inc. v. Biocraft
Laboratories Inc., 874 F.2d 804, 807, 10 USPQ2d 1843, 1846 (Fed.
Cir. 1989) (quoting In re Lamberti, 545 F.2d 747, 750, 192 USPQ
278, 280 (CCPA 1976)). A person of ordinary skill in the art
employing a polymeric material with appropriate air/gas
permeability would have recognized that the use of slits in the
material was not necessary.
Appellants argue that Tesch and Flesher are directed to
nonanalogous art areas. (Brief, pp. 4-5). Specifically, the
Appellants argue that the references are not from the same field
of invention and that the references do not attack the same
problem. (Brief, p. 5). Appellants disagreed with the
Examiner’s position that the references are analogous because
they are concerned with utilization of polymeric materials
having gas permeabilities properties. (Brief, p. 5).
I do not agree with Appellants’ position that Tesch and
Flesher are nonanalogous. “A reference is reasonably pertinent
if, even though it may be in a different field from that of the
inventor’s endeavor, it is one which, because of the matter with
which it deals, logically would have commended itself to an
inventor’s attention in considering his problem.” Clay, 966
F.2d at 659, 23 USPQ2d at 1061. In the present case, the
relevant properties of the polymeric sheet material used in
Tesch involve the permeability of air/gas. This property is
specifically discussed in the Flesher reference. The list of
stated utility of the polymeric film material disclosed in
Flescher is non exhaustive. Specifically Flesher states “[a]ll
the properties listed above make it possible to employ
polyetheresteramide-based films in accordance with the invention
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