Appeal No. 2006-0791 Ex parte Gore Enterp. Holdings, Inc.
[24] We note that the Calis data on the 978 patent examples diverge from the patent's
data (compare Calis at 5 with 978 patent Table 4).
[25] The unexplained divergences in the Calis data compared to Ito and Gore's 978
patent lead us to discount the Calis declaration rather than attribute the divergences to a lack of
enabling disclosure by Ito and Gore.
[26] The Calis declaration does not offer evidence on the key question raised in the
comparison of Ito's example 3 to the claimed invention: what is the ionic conductance rate
(µÉ/min)?
[27] The Calis declaration is accompanied by photomicrographs 1 and 2, which Dr.
Calis uses to compare Ito's UHMWPE membrane to Ito's membrane impregnated using Gore's
process.
[28] Since the reexamination request and the rejection posit modifying Ito by using a
PTFE membrane, the more relevant comparison would have been between Gore's claimed
membrane and a PTFE membrane prepared using Ito's process.
[29] Dr. Calis states that Ito's UHMWPE cannot be processed at 140°C (Calis at n. 3).
[30] Dr. Calis does not discuss Ito's preferred step (trans. at 8) of heating the
polyethylene substrate at up to 140°C or higher.
The Frydrych declaration
[31] Gore has submitted the declaration of Daniel J. Frydrych in support of the
proposition that the membranes of Gore and Ito are significantly different.
[32] Dr. Frydrych is a Gore associate (Frydrych at 1).
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