Appeal 2007-1309
Application 10/873,241
intermediate layer 3 against the lower face of the rail head and the upper face of the
rail boot (FF 6), and Ortwein discloses that the layer 3 is “elastic” (FF 1). We
understand “elastic” to refer to a flexible material that is capable of expanding or
stretching and returning back to its original shape (FF 7). As such, Ortwein
discloses that the layer 3 is flexible and capable of expanding. The prestressing in
Ortwein would necessarily cause the elastic layer 3 to expand at the upper and
lower ends as it squeezed from the sides by the wedge, such that a vertical
compressive stress would inherently occur when the column of the elastic layer 3
lies wedged into the rail 1 (FF 7). The burden is thus on Appellants to rebut the
Examiner’s prima facie case of anticipation.
Appellants presented evidence, in the form of a Declaration of Mr. Gordon
Steele (“Steele Decl.”), to rebut the Examiner’s findings. Mr. Steele admits in his
Declaration that “in Figs 1, 2 of ORTWEIN, the rubber component 3 is shown as a
tight fit with respect to the metal rail 1. That is to say, the situation as shown in the
ORTWEIN patent drawings is that the profile of the rubber 3 is a perfect fit into
the profile of the rail 1, with no gaps” (Steele Decl. ¶6). Nonetheless, Mr. Steele
contends that “such a perfect fit of the two profiles is, as a matter of commercial
practice, impossible” (Steele Decl. ¶7) because the elastic layer 3 of Ortwein is a
rubber extrusion and “as such is subject to quite loose margins of dimensional
tolerance” (Steele Decl. ¶8). Mr. Steele illustrated this contention with two
drawings labeled “A” and “B”. Drawing A shows a “tall” column with no gap
between Ortwein’s layer 3 and the head and base of rail 1. Drawing B shows a
“short” column with gaps on either end of the column of layer 3 and the rail 1.
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