Appeal No. 2005-1574
Application 09/753,428
no more immediately solidify the surface layer of the material in the shaper than do methods
encompassed by appealed claim 21 in roller systems 117 and 110. In these respects, we note
again here the teachings of Cope 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).
Thus, in view of the similar process conditions between the methods encompassed by
appealed claim 21 and the methods disclosed by Cope, the dispositive issue in this appeal is
whether the surface of the claimed synthetic wood-like product encompassed by appealed claim
21 and the surface of the product of Cope are the same or similar such that the claimed products
and the products disclosed by Cope reasonably appear to be identical or substantially identical.
Appellants submit that the claimed products have a “surface embossed texture” which
characteristic is not disclosed by Cope, while the examiner contends that such characteristics are
shown by Cope FIGs. 4 and 5.
We found above that the embodiments of Cope illustrated in FIGs. 4 and 5 have the
appearance of smooth surfaces with the exception of the decorative detail 76 in FIG. 5 which
would have been produced by hot stamping the smooth surface of the article after the article has
cured and hardened in the reference methods, and indeed, after the method steps specified in
appealed claim 21 have been satisfied (see above p. 7). We note here that the arguments with
respect to “hardness” advanced by appellants and the examiner are not persuasive with respect to
whether the surfaces of the illustrated embodiments are “smooth” or “embossed” as a result of a
process leading to the cooling and hardening of the extruded material. As we found above,
expanding or foaming of the extruded materials leading to the claimed products and those of
Cope and thus the surface characteristics of the products, occurs before the extruded material
begins to harden.
Thus, on this record, we find as a matter of fact that the two embodiments of the
references described in Cope FIGs. 4 and 5 as having the appearance of smooth surfaces, that is,
no apparent “surface embossed texture” imparted by the process of forming the extrusion profile,
do not identically describe the claimed products encompassed by appealed claim 21 within the
meaning of § 102(b). See Titanium Metals Corp. of Am. v. Banner, 778 F.2d 775, 780,
227 USPQ 773, 777 (Fed. Cir. 1985) (“[A]nticipation under § 102 can be found only when the
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