Appeal No. 2006-1850
Application 10/039,103
What the appellants do not argue, and the examiner as well does not set forth as
part of the bases of the rejection, is that figures 2A-2C and 3A-3C of Phillips already
teach the existence of an elastomeric film 44. It appears to us that the artisan would
conclude that this film 44 is a seal film of the type recited and argued in representative
independent claims 45 and 52 on appeal. It is recognized, however, that this film 44 does
not have any air interface shown “at the cube corner elements” as recited in claim 45 as
well as the corresponding clause in independent claim 52 on appeal. Additionally, the
showing in Response’s exhibit E (dated GJG 7/11/91) shows an Acrylic PSA which is
discussed in the response at pages 3 and 4 as apparently providing a corresponding seal
film applied to the metalized cube corner elements to maintain what appears to be an air
interface at the cube corner elements as claimed.
The rejection before us is based upon 35 U.S.C. §103 on a plurality of references,
whereas the focus of appellants’ arguments is directed at Phillips and to a lesser extent
McGrath. Appellants have recognized even in the characterization of the issue on appeal
at the bottom of page 3 of the principal brief on appeal that “it had been known for years
to use a seal film to maintain an air interface for cube corner elements.” On the basis of
this apparent admission or recognition of the state of the art as well as the applied prior
art, we are not persuaded that the examiner has exercised any impermissible hindsight or
that Phillips actually teaches away from the claimed invention to the extent argued at
least at page 5 of the principal brief on appeal.
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