Appeal No. 2005-2175
Application 10/104,383
Pollock and Nelson use different technologies because Pollock secures the plank directly to
support members and the floor covering of Nelson has a decorative surface on the bottom surface
(id., pages 16-17 and 29).
Appellants contend that there is no justification for modifying the plank of Pollock in
order to join such planks using the T-shaped molding of Haid because Pollock attaches planks to
supports using screws, Pitman is directed to pathway marking systems and Nelson discloses a
completely different type of flooring system using a tongue and groove joining system (id.,
pages 21-23, 24-25 and 31). Appellants further contend that Nelson teaches away from Haid
because Nelson teaches that the bottom and top surfaces of the flooring “are flat (not beveled)”
and thus form a gapless seam, with no more than “a hint” in the reference that “the edge surfaces
may not form a completely gapless seam” (id., pages 23, 25 and 30).
The examiner responds that Pitman is analogous prior art because it “deals with the
common problem in both Pollock and in the instant invention of how to color PVC and is relied
upon by the examiner only for the solution of using pigments” (answer, pages 12-13). The
examiner further argues that the planks of Pollock can be secured to supports using other means
than screws, and with respect to Nelson, that the means of securing the flooring has nothing to
do with a backing layer (id., pages 14-15). With respect to a “gap” in the flooring of Nelson, the
examiner contends that while “Haid teaches that the bevel (col. 4, lines 25-35) is decorative,”
[t]here is nothing in Nelson that would preclude a small surface gap if it were deemed a desirable
decorative feature,” pointing out that “[t]he main function of the groove system of Nelson is to
preclude separation of the planks, which is the purpose of the spline of Haid” (id., pages 17-18
and 19). The examiner further contends that the difference in the connection systems of Pollock
and Nelson argued by appellants does not preclude the “transfer of the teachings of PVC being
an effective decorative layer in a floor panel [or] the transfer of a teaching of how to color a PVC
molding,” arguing that references in the same art area can be relied on for the teachings therein
even if the subject matter is structurally different, and that appellants have not established that
the teachings relied on are “taught away from by the reference being modified or would destroy
the function of the reference being modified” (id., pages 20-21).
Appellants reply that “Pollock clearly relates to a deck plank, not a flooring plank” as
claimed, and, in this respect, “the planks of Pollock are used in a spaced-apart configuration,”
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