Appeal No. 2005-2175
Application 10/104,383
to claim 67 (id., page 10); to make the decorative cover layer of Nelson from PVC with a
pigment to form a colored layer as Pollock teaches PVC as a cover for a plank and Pitman
teaches providing color with a pigment with respect to claim 68 (id., page 11); and to use the
grooves and molding system of Haid to join the planks of Nelson with respect to claim 67 (id.,
page 12).
With respect to appealed claims 67 and 68 and the references applied thereto, appellants
first contend that Pollock would have taught a deck plank which is held to deck supports by
screws, citing col. 6, ll. 12-66 (brief, page 7). We observe that the numerals cited by appellants
in this respect are used by Pollock in describing Pollock FIGs. 3 and 5 at cols. 4-6 in illustrating
plank embodiments having a different core and cover assembly than the covered, solid core
plank disclosed in col. 12 and FIG. 17 relied on by the examiner. Appellants further contend
that Pollock describes securing a solid core deck plank using a method which, as described by
appellants (brief, pages 7-8), appears to us to be the method illustrated in Pollock FIGs. 7, 8 and
10A-10E, as described at col. 3, l. 64, to col. 4, l. 9, col. 4, ll. 13-16, and col. 10, l. 6, to col. 11,
l. 29, for the particular purposes of using the plank as a step or to dress up the sides of a boat
dock, again with embodiments having a different core and cover assembly (col. 10, ll. 6-13). In
any event, we fail to find any disclosure in Pollock which would have taught in any respect that
the covered, solid core plank embodiment must be used in either of the ways found by appellants
to be taught by Pollock, and indeed, Pollock does not specify any manner of attaching the
covered, solid core plank to a substrate in disclosing the embodiment relied on.
Appellants submit that Pollock does not teach a thermoplastic cover layer with a pigment,
“the design of Pollock would make it impossible to form a connected flooring system” and
Pitman is non-analogous prior art as it does not relate to floor planks and thus not to the subject
matter of Pollock, arguing that the references are thus not combinable by one of ordinary skill in
the art (brief, pages 8-9 and 28). Appellants further submit that Nelson and Pollock are not
combinable because “Nelson is for a floating floor surface and certainly does not teach or
suggest securing directly to joists as Pollock” and “shows a backing layer in all embodiments
whereas Pollock does not use any backing layer” (brief, page 14 and 28-29). In the latter
respect, appellants contend that Nelson discloses that “a decorative layer” must be “on both the
upper and lower surfaces of the core” (id., pages 14-15; original emphasis deleted), and that
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