Appeal No. 2005-2175
Application 10/104,383
citing col. 1, line 27 and Pollock Fig. 19, arguing that “the reference does not teach or suggest
any physical features that would realistically allow the planks to be joined together to make a
surface such as flooring” because “[a]s seen from Figs. 1, 6, 7, and 12-18, the structure disclosed
in Pollock is not amendable to any such joining” (reply brief, page 3; see also pages 2 and 6-7).
Appellants contend that there is no motivation in Pollock to use the planks therein “to form a
flooring, since a spaced-apart configuration is what is needed for the uses described in Pollock”
which require “a gap” (id., pages 3-4). Appellants further contend that the combination of
Pollock and Pitman does not “overcome the failure of Pollock” to teach “a flooring plank that is
capable of connecting with other planks to form a floor covering” (id., page 4).
In the same manner, appellants argue that there is no motivation to combine Pollock and
Nelson because “the deck plank of Pollock is specifically intended for uses wherein an empty
gap between planks is desired” and does not teach or suggest that such planks can be joined as
flooring, pointing out that the plank of Pollock Fig. 17 has “outwardly sloping side flanges” such
that “it would not be physically possible to join the deck planks . . . to form flooring surfaces”
even in views of the “teachings of Nelson regarding grooved edges or glue” (id., page 7).
Appellants further contend that the combination of Pollock, Nelson and Haid “does not
overcome the fact that it would be physically impossible to combine the deck plank of Pollock
with the alleged teachings of Nelson regarding grooved edges because the edges of the deck
plank of Pollock are not physically configured to be joined with other deck planks,” and there is
no motivation to join the planks of Pollock with the T-shaped molding of Haid because “an
empty gap between deck planks is desired” by Pollock (id., pages 11-12). Appellants argue that
there is no motivation to combine Nelson, Pollock and Pitman because the decorative covering
layer of Nelson would not be used with “a boat dock or a hog house” as in Pollock, and Pitman
teaches “photoluminescent pigments” which would not be used in the cover layer of Nelson or
Pollock (id., pages 13-14). Appellants point out that appealed claim 67 excludes a plank having
“a male edge” which is contained by the articles of Nelson, and that the modification of Nelson
to remove such an edge “would completely change the principle of operation of the article of
Nelson” (id., pages 14-15).
Contrary to appellants’ arguments, we find substantial evidence in the record supporting
the examiner’s position. We disagree with appellants that Pitman as relied on by the examiner
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