Appeal 2007-0404
Application 10/684,611
phrase as including any amount of carbon dioxide, even infinitesimal
amounts. We note that the Specification does not place any limits on the
amount of carbon dioxide present in the foam cells.
In view of our claim construction as noted above, we determine that
the Examiner has established that the foam cells of Park and Hayes would
inherently contain some amount of carbon dioxide. See factual finding (3)
above, where Park teaches that the foam cells contain carbon dioxide (the
blowing agent) at some point in time before the blowing agent diffuses
through the cell wall during aging. Accordingly, at this point in time, the
foam sheet in the multilayer co-extruded product of Park anticipates the
claimed container or multilayer preform. See Exxon Inc. v. Lubrizol, supra.
Even after aging, Park teaches that the foam cells of the multilayer co-
extruded product contain air, which the Examiner notes contains small
amounts of carbon dioxide (Answer 8).2 Thus the aged product of Park
would also anticipate the claims as construed above.
Our remarks above equally apply to Hayes. We note that both Park
and Hayes disclose methods of forming a foamed product which are the
same or substantially the same as disclosed by Appellant, namely injecting a
blowing agent of carbon dioxide into a plasticated polymeric melt (Hayes,
col. 15, ll. 36-40; Park, col. 9, ll. 17-28; and the Specification 4:5-14).
Accordingly, this evidence alone provides a reasonable belief that the
products of the prior art references will have identical or substantially
2 See the CRC Handbook of Chemistry and Physics, 48th ed., F-142, The
Chemical Rubber Co., Cleveland, OH, which discloses that atmospheric air
contains 0.033% by volume of carbon dioxide.
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