Appeal No. 2006-0441
Application No. 09/809,604
stand rejected under 35 U.S.C. § 102(e) as anticipated by, or in
the alternative, under 35 U.S.C. § 103(a) as being unpatentable
over Markusch.
We have thoroughly reviewed the respective positions
advanced by appellants and the examiner. In so doing, we find
ourselves in agreement with the appellants that the examiner has
not established a prima facie case of anticipation or obvious
under Section 102 and Section 103, respectively. Accordingly, we
will not sustain the examiner’s rejections.
The fatal flaw in the examiner’s rejections is that Markusch
does not describe, within the meaning of Section 102, a
polyurethane impregnated in a geotextile, and does not teach or
suggest for purposes of Section 103 such an impregnated
geotextile. As emphasized by appellants, Markusch expressly
discloses that “[t]he viscosity of the reacting adhesives is
sufficiently high so that the compositions do not soak into
porous substrates and thus remain on the surface of the substrate
where they maintain their effectiveness as adhesive layers”
(column 2, lines 13-16). Consequently, Markusch provides a clear
teaching that the polyurethane does not impregnate a porous
substrate due to its high viscosity.
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