Appeal No. 2005-1574
Application 09/753,428
respective grounds of rejection in light of appellants’ rebuttal arguments in the brief. See
generally, In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re
Spada, 911 F.2d 705, 707 n.3, 15 USPQ2d 1655, 1657 n.3. (Fed. Cir. 1990); In re Piasecki, 745
F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984). While appellants have addressed their
arguments in the brief to specific grounds of rejection, we have considered all of the arguments
with respect to each of the grounds of rejection.
Setting aside for the moment the two embodiments of Cope illustrated in FIGs. 4 and 5,
we consider the differences that appellants find between the methods characterizing the claimed
product encompassed by claim 21 and the methods characterizing the product disclosed by Cope.
We initially find that the extruder apparatus, including the die, as shown in Cope FIGs. 2 and 3
is an “equivalent” of the “plastifying and extruding means” clause in step “D.)” of claim 21 for
purposes of § 112, paragraph six, because the extruder and die of Cope performs the identical
function in substantially the same way, with substantially the same result, as the extruder and die
described in appellants’ specification (see above p. 4).
We cannot agree with appellants’ argument that Cope cools the extruded material below
the softening point of PVC, 80°C, that is, 176°F, in the shaper, thus immediately solidifying the
surface layer of the material such that foaming cannot occur on the surface, while the method of
claim 21 uses a roller system that slowly cools the PVC above that temperature. We found
above the disclosure in Cope that there can be “[a] space of several inches . . . between the die
exit and the shaper entrance . . . to allow some expansion of the extrudate before entering the
shaper,” as seen in Cope FIG. 2, and that “[t]he material begins to expand or foam as it passes
through the die and then it begins to fully expand as it enters the shaper” (see above pp. 6-7).
Thus, Cope would have taught one of ordinary skill in this art that the extruded material is fully
expanding or foaming as it enters the shaper, that is, before it begins to harden against the wall of
the shaper, which can be at a temperature below the softening point of the extruded material as
disclosed, from “the outside surface to the inner core” (see above pp. 6-7). In this respect, we
found above that Cope would have taught one of ordinary skill in the art that the properties
imparted to the extruded material are affected by the result effective parameters of shaper
temperature and speed of the extruded material therethrough (see above p. 7).
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