Appeal 2007-1365
Reexamination Control 90/006,595
Patent 6,289,548
Patent Owner’s response thereto are discussed below.
i) The Rejection of Claims 1, 5-8 and 12-14 over the Australian
Application
Claims 1 and 8 are independent claims with claims 6 and 7 depending
from claim 1 and 12-14 depending from claim 8. Claims 1 and 8 are
directed to patterned synthetic sponges formed from synthetic open cell
elastomeric material and having an outer surface that bears a pattern having
ragged torn edges, being at least about 0.5 inches in depth. The sponge of
claims 1 and 8 simulates a natural sea sponge when contacting a wall surface
for creating faux finishes. Patentee’s dependent claims require the synthetic
sponge be formed from polyurethane, polyester or polyether (claims 5 and
12), have a pattern depth of from 0.5 to 0.75 inches (claims 7 and 14) and
that the pattern be formed using a rotating grinding wheel (claims 6 and 13).
The Examiner found hat the Australian application discloses the
“invention substantially as claimed with the exception of a particular depth.”
(Ans. at 3-4). The Examiner further found that one of ordinary skill in the
art would modify the depth of the pattern depending upon the type of pattern
desired. (Ans. at 4). The Examiner still further found that one of ordinary
skill in the art would have formed the artificial sponge using Patentee’s
claimed materials (polyurethane, polyester or polyether) due to the ready
availability of the materials and cost. (Id.). The Examiner states that the use
of the grinding wheel of claims 6 and 13 does not distinguish the resulting
torn sponge from the sponges described in the Australian application. (Id.).
Patentee contends that the Australian application fails to distinguish
between artificial and natural sponges. From this, Patentee contends that the
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