Appeal No. 2005-2175
Application 10/104,383
ordinary skill in this art at the time the claimed invention was made. Accordingly, we again
evaluate all of the evidence of obviousness and nonobviousness based on the record as a whole,
giving due consideration to the weight of appellants’ arguments in the brief. See generally, In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Piasecki, 745 F.2d
1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984).
We find that Pollock would have disclosed to one of ordinary skill in this art2 a plank
embodiment comprising a solid core plank member, that can be extruded from a blend of
recycled plastic resin or other resin, and a cover, that can be extruded PVC, wherein the cover
can include hooks which engage flanges on the plank member to obtain the article illustrated in
Pollock FIG. 17 (col. 12, ll. 17-50). Pollock further would have disclosed that other plank
members and covers can be extruded from polyvinyl chloride (PVC) or other suitable resin, with
“the colors desired,” the choice of which is within the ordinary skill in the art (col. 6, ll. 12-19).
We find that Pollock would have led one of ordinary skill in this art to select PVC for the solid
core plank member and the cover for that member, and to “color” the cover and/or core as
desired with coloring agents well known in the art for PVC, such as pigments. We further find
that in disclosing this embodiment, Pollock would not have taught or suggested any specific
means to secure the covered, solid core plank of FIG. 17 to supports to form decks or specified
the positioning of the planks in forming a deck. We find that the plank of FIG. 17 is of different
construction than other embodiments described and illustrated by Pollock (e.g., FIG. 3). In this
respect, Pollock would have taught that the planks can be “installed in a manner similar to
conventional lumber deck planks,” that the planks can be “installed side-by-side . . . spaced
sufficiently close together such that persons wearing high heel shoes will not be in danger of
having their heels entrapped in the gap between the planks” and that planks can be positioned or
description requirement of § 112, first paragraph, if it introduces new concepts). We suggest that
the examiner consider these issues under § 112 together.
2 It is well settled that a reference stands for all of the specific teachings thereof as well as the
inferences one of ordinary skill in this art would have reasonably been expected to draw
therefrom, see In re Fritch, 972 F.2d 1260, 1264-65, 23 USPQ2d 1780, 1782-83 (Fed. Cir.
1992); In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968), presuming skill on
the part of this person. In re Sovish, 769 F.2d 738, 743, 226 USPQ 771, 774 (Fed. Cir. 1985).
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