Appeal 2006-2835
Application 10/033,496
[a]s to the toughness, it is noted that Dontula ‘976 does expressly
teach that the upper and lower sheets are chosen to satisfy specific
requirements of properties, such as flexural modulus, etc. In
particular, a toughness related problem with the element in cutting,
punching, slitting, and chopping during transport through a
photofinishing equipment is solved (column 5, lines 45-64).
[Answer 3-4; original emphasis deleted.]
Thus, the Examiner concludes that
Dontula ‘976 does teach exactly the same subject matter (an
imaging member of the same laminate structure and comprising
exactly the same polymers), made by exactly the same process
(coextrusion, quenching, orienting, heat setting and laminating),
and having the same toughness related required properties for
application processing (i.e., having suitable cutting, slitting and
chopping properties to be processed through a photofinishing
equipment) as the instant invention . . . [and] although Dontula ‘976
is silent about the toughness data, a suitable toughness of each layer
is also clearly anticipated by Dontula ‘976, because the imaging
member meets the same toughness related required properties for
processing through a photofinishing equipment. [Answer 4.]
Appellants submit that Dontula ‘976 is not anticipatory because it
does not describe “toughness” for the sheets in the base component, arguing
that this property “is dependent upon issues such as chemical structure,
crosslinking, and the amount and direction of orientation of the polymer
sheet,” and “not directly dependent upon modulus and . . . may differ
substantially among materials with a similar modulus” (Br. 5). Appellants
argue that “[t]oughness and modulus are distinct properties,” explaining the
difference (id. 6-7). In response, the Examiner admits that “there is no
constant correlation between toughness and modulus” but maintains the
grounds of rejection because “nowhere does Dontula ‘976 teach an imaging
element which differs from the instant invention in structure, composition,
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