Appeal No. 2007-0196 4
In general, an exhibit filed with the reply brief is not proper.1
Bd.R. 33(d)(2). The Board did not abuse its discretion in not considering the late
filed exhibit. (As a practical matter, our forbearance was enforced by the
illegibility of the relevant tables in the official record of the Office.)
Even if the handbook had been properly (and legibly) before us, it would not
have changed the result. First, working from the table in the request (at 6), we note
the data for UHMWPE and PTFE does not uniformly favor UHMWPE. In some
cases, the data overlaps, while in one instance (Shore Hardness) PTFE appears to
have a better upper value. Thus, the data is consistent with the idea stated in the
Board's opinion that those skilled in the art could be expected to know and balance
the pros and cons of each material when selecting which polymer film to use.
Second, the data is presented without any useful context. For instance, as noted
above, the processing of the polyethylene into the film appears to be critical, yet
the data (at least as reproduced in the request) does not appear to address films at
all.
In any case, even assuming arguendo that UHMWPE films were always
unambiguously superior to PTFE films in mechanical properties, it does not follow
that substitution of a fluorinated film was not obvious. There is no requirement in
obviousness law that only an unambiguously superior substitution can be obvious.
As discussed above, the art recognized PTFE films as an acceptable alternative for
use as a substrate in ion-exchange membranes. On the facts of this case, this is
sufficient for a prima facie case of obviousness.
1 The exceptions to this rule are not present here.
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