Appeal 2007-0694
Reexamination Control 90/006,433
Patent 5,428,933
projections and recesses are not substantially the same dimensions. (Appeal
Br. at 26-28, Reply Br. at 4-5). The Examiner states that Guarriello’s
projections (270, 272) and recesses (274, 276) are substantially the same
dimension. The Examiner basis this conclusion on Webster’s definition of
the term substantially as “being largely but not wholly that which is
specified.” (Answer, p. 10).
We have credited Mr. Philippe’s testimony that one of ordinary skill
in the art would understand that the terminology substantially the same
dimensions refers to variations on the order of those implicit in the
manufacturing process. Mr. Philippe has testified that for blocks formed
with foamed material the size variation ranges from about 1 to 2%.
(Philippe Dec., ¶ 4).
Guarriello’s foamed blocks contain projections and recesses that
apparently vary by significantly more than 2%. Guarriello does state that,
for Figures 8 and 9, each of its channel and rib components will generally
have a dimension corresponding to about a third of the maximum width of
the upper and lower face. (Guarriello, col. 5, ll. 59-61). Yet, Guarriello
teaches that at least one transverse slot 286 is defined in its second rib
component 272, the transverse slot being a recess. (Id. at col. 5, ll. 45-48).
Further, Guarriello states that it is desirable that second rib 272 will have a
length of L + 2W where L is the length of rib component 270 and W is the
maximum width of first rib component. (Guarriello, col. 5, ll. 21-25).
Indeed, as depicted in Guarriello Figure 8, projection 270 is approximately
20% larger than projection 272. (See Guarriello Figures 8 and 9 and Appeal
Br. Figure 5 reproduced above). Similarly, Guarriello’s recesses 274 and
276 of Figures 8 and 9 are also significantly larger than projections 270 and
26
Page: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Next
Last modified: September 9, 2013