Appeal 2007-1169
Application 09/850,857
Applicant argues that claims 3 and 7 are similar in scope and require
that the triwall panel provides improved impact strength in cold climates
with the center layer having 2 to 6 parts per hundred of an impact modifier.
(Br 19-20). The Supreme Court in KSR recognized that market forces can
prompt variations in prior art products and that obviousness likely bars
patentability where one of ordinary skill in the art has implemented a
predictable variation of the prior art. KSR at 1732, 82 USPQ2d at 1396.
Lause teaches that suitable amounts of an impact modifier for a panel ranges
from 0.4 to 10 parts per hundred, which encompasses Applicant’s claimed
amounts. One of ordinary skill in the art recognizes that panels and siding
are sold in both warm and cold climates. One of ordinary skill in the art had
reason to select the types and amounts of impact modifier needed to achieve
a suitable impact strength for cold climates. Furthermore, Applicant has
failed to establish that its claimed ranges of impact modifier are critical or
reflect something other than the routine selection of a known amount of an
impact modifier to achieve a predictable result.
Applicant argues that claims 5 and 8 are distinguished over the prior
art as claim 5 describes “cost efficient” properties and claim 8 describes the
use of regrind materials to reduce production costs. Both Heilmayr and
Lause demonstrate that one of ordinary skill in the art had a desire to
manufacture economical, low cost panels. Lause explicitly teaches that one
of ordinary skill in the art understood that regrind/reclaim materials may be
used to form panels, especially where the appearance of the part being
formed was not important. (Lause, e.g., col. 3, ll. 6-10). One of ordinary
skill in the art having the desire to form cost effective, economical panels
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