Appeal No. 2007-0196 2
Claim 29, the sole independent claim affected by the affirmance, provides a
basis for considering Gore's arguments. Claim 29, as reproduced from the appeal
brief appendix, states (emphasis of the contested limitation added):
An integral air impermeable composite membrane comprising:
a fluoropolymer support capable of processing at temperatures
up to 140° C, said support having a microstructure of micropores, said
microstructure defining a porosity in the range of about 70% to 98%
within said support,
at least one ion exchange resin filling and thereby occluding
said micropores of said microstructure such that said resin filled
microstructure of said composite membrane is air impermeable, said
composite membrane having a thickness of at most 0.8 mils.
The primary reference, Ito, uses a UHMWPE film rather than a fluorinated film.
The examiner relied on a secondary reference, Silva, to show the use of fluorinated
films, specifically PTFE, in the field of the patented invention. Ito valued strength
in films, but objected to fluorinated films as expensive. Silva exemplified an
adequately strong PTFE film.
Adequate strength is the issue
According to the request (at 3), "Silva does not teach that fluorinated films
are strong, and Silva does not teach that its fluorinated films are stronger than the
UHMWPE of Ito." Gore fails to appreciate all that Silva fairly teaches and thus
misapprehends the point of the Board's opinion.
Silva explains (1:1-28) that, while fluorinated films were already known in
the art, reinforcing them to provide strength adversely affects performance. Thus,
Silva states that provision of a tough or tear-resistant membrane is a goal of the art
generally and of the Silva invention specifically. Silva later stresses the
importance of toughness and exemplifies the invention with a PTFE sheet made
from GORE-TEX®, which is said to provide the requisite toughness (6:18-28).
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