Appeal No. 2005-1574
Application 09/753,428
begins to harden from the surface to the core when it contacts the wall of sharper 58, contending
that thus “the surface layer of the PVC material is immediately solidified” and “[f]oaming cannot
occur on the surface and the profile has a smooth surface with or without hard skin [] [i]n
contrast to . . . slowly [cooling] the PVC material after the exit of the die” such that “foaming
takes place on the surface of the board to form an embossed texture” (id., page 9).
Third, appellants argue that the claimed method “steps necessitate a difference product
from” that of Cope, pointing to the “slow cooling step with rollers” and alleging that Cope
“forms a consistent solid product” with jacket 52 keeping the material at a temperature below its
softening point and the absence of rollers to cool the product as claimed (id., pages 9-10).
Lastly, appellants argue with respect to the disclosure in Cope involving FIG. 5 thereof, that the
reason finishes, including hot foil stampings, are applied after the profile is cured and hardened
“is because of the fast cooling under [Cope’s] process causes immediate solidification of the
surface layer . . . to make a smooth surface,” which is thus not embossed (id., pages 11-12).
With respect to the ground under § 103(a), appellants submit two arguments. First,
appellants contend that there is no motivation in Cope to produce an embossed textured surface
because the material is cooled below its softening point with jacket 52 and thus “foaming cannot
occur in the surface and the profile has a smooth surface with and without hard skin” which is “a
smoother skin than the current state of the art” (id., pages 12-13). And, second, appellants
contend that “there is no motivation to make the product with an external foam skin and foam
core” because the material “begins to cool as it enters the shaper and is allowed to completely
cool thereafter without the use of rollers” for slow cooling which forms such a product with an
embossed surface (id., page 13).
In response, the examiner relies on his finding that the articles of Cope FIGs. 4 and 5
have “embossed or raised surface portions,” taking the position that “portions of a foamed body
may be left without a hard skin” and “a foamed body, absent a hard skin, would have a foam
surface or skin,” and alleging that “outer portions 66 and 68 are always hard skinned, . . . are not
present on the entire article . . . and are not always required to be present . . . in Fig, 4,” even
with the affect of jacket 52, (answer, pages 4-6).
We determine that the examiner has made out a prima face case under each of the
statutory provisions and accordingly, we again consider the record as a whole with respect to the
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