Appeal No. 2007-0196 3
The Board's opinion never says PTFE films are necessarily stronger than
UHMWPE films. Instead it points (at 9) to the "adequate mechanical strength" and
"[a]ugmented mechanical strength" of Silva's improved PTFE film. By
exemplifying a tough, unreinforced PTFE film, Silva provides an alternative film
for use in inventions like Ito's film.
The fact that the improved properties of Silva's PTFE film come from the
way it is processed does not make it less relevant. Indeed, as the request observes
(at 4-5), Ito achieves much the same benefit in much the same way with
UHMWPE. If anything, Gore's observation supports a finding of the practical
interchangeability in this art of polyethylene films with PTFE films. This
observation lies at the heart of the examiner's rejection.
In an obviousness analysis, in the absence of secondary considerations, we
analyze the contested difference in light of the scope and content, as well as the
skill level, in the relevant art at the time of invention. Here, it is apparent that
those of the skill in the relevant art knew to use PTFE films and, at least after
Silva, knew how to make and use adequately strong PTFE films.
Handbook data argument is a red herring
Gore points (at 5-6) to the following exhibit in the supplemental appendix in
its reply brief as supporting the proposition that the art recognized UHMWPE as
superior in strength to PTFE:
Handbook of Plastics, Elastomers, and Composites, pp. C.10 & C.42
(3d ed. 1996) (C.A. Harper, ed.).
The argument is improper and misdirected.
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