Appeal 2007- 0629
Application 10/419,765
“Inherency ... may not be established by probabilities or possibilities. The
mere fact that a certain thing may result from a given set of circumstances is
not sufficient.” Mehl/Biophile Intl Corp. v. Milgraum, 192 F.3d 1362, 1365,
52 USPQ2d 1303, 1305 (Fed. Cir. 1999)(quoting In re Oelrich, 666 F.2d
578, 581, 212 USPQ 323, 326 (CCPA 1981)).
Moveover, we cannot say that the evidence supports the Examiner’s
finding that Vair’s surface layer does not melt. The temperature range
disclosed by Vair is for thermoplastics in general and is not specific to
polypropylene. We cannot say that the Examiner’s citation of the melting
temperature in the Complete Textile Glossary and reasoning which focuses
on the preferred temperature of 240° F, a temperature which is not disclosed
as specific to polypropylene, overcomes the express disclosure in Vair of
melting the surface of the mat. Furthermore, it appears from Appellants’
Specification that melting the surface changes the properties of the skin as it
makes it brittle. There appears to be a structural difference between melted
and non-melted surfaces.
D. Conclusion
We find that the Examiner’s technical reasoning does not support a
reasonable belief of inherency with regard to the air flow resistance property
and the avoidance of complete melting.
All of the claims depend from claim 30. Moreover, none of the other
references cure the defects discussed above. Therefore, with regard to all
the rejections, the findings of the Examiner are insufficient to establish a
prima facie case of obviousness.
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