Appeal No. 2006-0791 Ex parte Gore Enterp. Holdings, Inc.
a. Porosity of 80.5% (vs. claimed 70-98%);
b. Thickness of 12 µm (vs. claimed 2-25 µm); and
c. Pore size of 0.025 µm (vs. disclosed as less than 10 µm, but "preferably
between 0.05 and 5 µm", 978 patent at 4:37-40, emphasis added).
[18] Gore contends that Ito example 3 is not enabled (App. Br. at 8-10), citing the
reexamination requester-submitted declaration of Gijs Calis.
The Calis declaration
[19] Dr. Calis is an employee of the reexamination requester (Calis at 1, item 3).
[20] Dr. Calis opines (Calis at 1, item 8), based on his experience in ion-exchange
membrane [IEM] technology:
that the IEM produced by the process disclosed in[Ito] is an integral air
impermeable composite membrane as set forth in the claims of [Gore's patent
under reexamination] and has substantially identical properties to the IEM which
would be produced from microporous polyolefin by the process disclosed in
[Gore's patent].
[21] Dr. Calis describes an attempt to replicate Ito examples 1-5 (Calis at 1-5), a
NAFION® control (Calis at 6), 978 patent example 6 (Calis at 7 & 8), and another NAFION®
control (Calis at 9).
[22] Gore notes that the Calis data on the Ito examples diverge from Ito's own data
(App. Br. at 9).
[23] The examiner insists that reproducing the Ito examples is well within the ordinary
skill in the art (Ex. Ans. at 15).
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