Appeal 2006-1080
Application 10/109,343
Gaudette, Administrative Patent Judge, dissenting
I respectfully dissent from the majority decision affirming the
rejections of claims 1-5 and 22. In my view, the Examiner’s findings are
based on impermissible hindsight reconstruction and unsupported by the
evidence of record. Therefore, I would reverse as to all three grounds of
rejection for the reasons discussed below.
The invention relates to a porous board or fibrous material having a
non-tacky surface coating of a petroleum or coal tar pitch. The invention is
used in building applications, such as roofing materials. According to the
Specification, prior art roofing materials are typically manufactured by
applying a glue or an adhesive to a fibrous material and attaching a roll felt
material (Specification 1). A drawback of this prior art coating method is
the excess penetration of glue or adhesive into the board (Spec 1). One
method of reducing penetration of adhesive is to apply a small amount of
asphalt, usually diluted with solvent, to allow a limited amount of asphalt
sealer to soak into the board (Specification 1-2). According to the
Specification, this approach is undesirable because evaporation of the
solvent creates volatile organic compounds which contribute to air pollution
(Specification 2). Moreover, a coating which is heavy enough to provide
effective waterproofing requires a long drying time and tends to create an
undesirable sticky surface on top of the board (Specification 2). According
to the inventors, they have:
discovered that it was possible, using a glassy substance, to
provide a superb waterproofing coating which could be nailed
without shattering and which required much less, or even no,
solvent . . . [and] that pitch, preferably petroleum pitch with a
10
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