Appeal No. 2005-1574
Application 09/753,428
We find that one of ordinary skill in the art would have observed that the articles
illustrated in FIGs. 4 and 5 appear to have smooth surfaces with the exception of the decorative
detail 76 in FIG. 5 which would have been applied by hot stamping after the profile has cured
and hardened as disclosed. We further find that this person would have observed in FIG. 4 the
presence of encapsulated wood fibers 73 within the “cellular matrix 75,” the latter reasonably
expected from the disclosure of Cope to include foam bubbles that are situated at the surfaces
66,68,70,74 as well as in the core of the profile.
In rejecting claim 21 alternatively under §§ 102(b) and 103(a), the examiner finds that
Cope’s product has a Shore Hardness in the claimed range, “an embossed surface (i.e., a surface
with a raised design [sic, )], as evidenced by the protruding portions of the article illustrated in
Figs. 4 and 5,” and “an external foam skin and a foam core in the disclosure set forth from
column 5, line 64 to column 6, line 3” (answer, pages 3-4). The examiner further finds that
“portions 72,74 of the profile illustrated in Fig. 4 may be left without a hard skin . . . [and thus,]
at least portions of the article may be left with a foam surface or skin,” and that “a hard skin may
not be formed” with 66,68 (id., page 4). The examiner concludes with respect to the ground
under § 103(a), that it would have been prima facie obvious to one of ordinary skill in the art to
produce a wood-like product with an external foam skin because Cope “discloses that portions of
the profile may be left without a hard skin” (id.).
Appellants submit several arguments with respect to the ground under § 102(b). First,
they argue that the surface of the Cope articles is smooth and not embossed as claimed,
contending that the “vacuum tank” used to shape the profile “necessitates a smooth surface to
maintain the vacuum” (brief, page 7). Appellants further point to the temperature for roller
system 110 disclosed in the specification (see above p. 6), contending that “[b]y maintaining the
temperature of the rollers above the PVC softening point temperature [of 80°C, that is, 176°F,]
the surface of the PVC material is kept soft . . . to form an embossed texture,” and points out that
Cope “makes no use of rollers” and “does not disclose an embossed surface” (id., pages 7-8).
Second, appellants argue that the Cope product has a smooth surface because, in their view,
Cope discloses hard skin portions 66,68 for Cope FIG. 4 and is silent on the characteristics of
remaining portions 72,74 (id., pages 8-9). Appellants point to the teaching in Cope that jacket 52
is kept at a temperature below the softening point of the extrusion material, which material
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