Appeal 2007-1365
Reexamination Control 90/006,595
Patent 6,289,548
depth on the sponge face to achieve the desired pattern character. (Ans. at
4). The Examiner further finds that one of ordinary skill in the art would
recognize that Australian application Figure 1 depicts a non-linear pattern
and that the cutting of a sponge would produce a “torn” or “ragged” edge,
giving those terms their broadest reasonable construction. (Ans. at 5).
We affirm the Examiner’s rejections.
ISSUE
The issue is whether Patentee has shown that the Examiner erred in
rejecting the claims. Specifically, the issue is:
Has Patentee demonstrated that the Examiner was incorrect in
finding that one of ordinary skill in the art would have been
able to follow the teachings of the prior art and remove portions
of a synthetic sponge face for its desired effect?
FINDINGS OF FACT
A. Patentee’s ‘548 Specification and Claims
1) Patentee’s claims on appeal are directed to synthetic sponges having a
pattern on their face that simulates a natural sea sponge when creating a faux
paint finish. (Br., Independent claims 1, 8 and 15).
2) Broken pattern finishes were popular in the 1930’s and were produced
by “sponging” or “ragging” techniques where a sponge or rag was used to
disturb a freshly painted wall to produce a broken pattern. (‘548, col. 1, ll.
21-26).
4
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