Appeal 2007-1309
Application 10/873,241
Appellants admitted that “[t]he tolerance regime [of Drawing] ‘A’ DOES produce
vertical compression” and that if we find that Ortwein discloses the “A” tolerance
regime, then the rejection of claim 10 can stand (Reply Br. 1) (emphasis in
original).
We find no basis in Ortwein’s disclosure for Mr. Steele’s statement that the
elastic layer 3 is made of extruded rubber. First, Ortwein describes layer 3 as
“elastic”, but never discloses that it is made of rubber (FF 9). Second, Ortwein
further does not disclose that the elastic intermediate layer 3 is formed by extrusion
(FF 9). As such, we find no basis in fact for Mr. Steele’s conclusion that the
dimensional tolerances of Ortwein’s elastic layer 3 are such that a snug fit would
not be achieved. We are unwilling to disregard the explicit disclosure in Figures 1
and 2 of Ortwein, which the Declarant admits clearly show a snug fit, with no
gaps, between the elastic layer 3 and the head and base of rail 1 (FF 6 and Steele
Decl. ¶6), in favor of Mr. Steele’s hypothetical commercial embodiment that is
based on his conjecture as to the material and method used to make layer 3.
Mr. Steele further contends that “[a]lthough the components are made of
rubber, the elasticity of the rubber compounds used is not that great” and that “the
rubber component is hardly less rigid than steel” (Steele Decl. ¶14). As such, he
opines that “[t]he profile of the rubber does NOT conform itself to the profile of
the steel – at least, not under the industry-typical low levels of the force applied to
the rubber, for the purpose of engaging the rubber against the side of the rail”
(Steele Decl. ¶14). Again, we find no basis in fact to support Mr. Steele’s
contention. Ortwein does not disclose that the elastic intermediate layer 3 is made
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