Appeal 2007-0821
Application 10/001,730
The Crabtree reference evinces that open versus closed cells in
foamed polymers were known to be alternatives to those with ordinary skill
in the art. This supports the Examiner's conclusion that it would have been
obvious to provide Nomura's structural member with closed rather than open
cells, particularly since this provision yields merely the predictable results of
combining known elements (i.e., the foamed structural members of Nomura
and the closed cells of Crabtree). Moreover, this obviousness conclusion is
reinforced by the prior art discussion in Appellants' Specification which
describes prior art structural members of foamed thermoplastics as having
either a closed or open structure (Specification 2:20-23).
Appellants argue that Nomura's teaching of air permeable (i.e., open)
cells teaches away from closed cells (Br. 6). This is incorrect. Nomura
contains no teaching of any kind which would have discouraged an artisan
from using closed cells. Therefore, this reference cannot be regarded as
teaching away from the use of closed cells. In re Gurley, 27 F.3d 551,
552-53, 31 USPQ2d 1130, 1131-32 (Fed. Cir. 1994).
Regarding the here claimed fiber length feature, the undisputed fact
that the ranges of claim 1 and Nomura overlap establishes a prima facie case
of obviousness. In re Peterson, 315 F.3d 1325, 1329, 65 USPQ2d 1379,
1382 (Fed. Cir. 2003).
As evidence of nonobviousness, the Appellants rely on the § 1.132
Declarations of record by Sutch and Pennington. This reliance is misplaced.
These Declarations, which are essentially identical, simply describe in
narrative form the development of a polyvinyl chloride/glass fiber blend in
which relatively long fibers yielded unsatisfactory results (Sutch Decl. Item
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