Appeal 2007-1365
Reexamination Control 90/006,595
Patent 6,289,548
Australian application “is devoid of any teaching to make a synthetic sponge
mimic a natural sponge nor how to accomplish such a task.” (Br. at 10).
One of ordinary skill in the art knows that sponge painting is popular
and considered aesthetic to a great number of people. One of ordinary skill
in the art also knows that natural sponges may be scarce and expensive.
Further, one of ordinary skill in the art knows that the use of natural
sponges, as opposed to artificial sponges on rollers, is labor intensive and
expensive. The Australian application teaches one of ordinary skill in the art
that any desired paint pattern may be formed using an artificial sponge that
has had an appropriate amount of material removed from its face. Based
upon the facts presented, we find that one of ordinary skill in the art would
have been aware that there was a known problem with natural sea sponges
for which there was an apparent solution, i.e., using artificial sponges that
had pieces removed from their faces so that the paint pattern created by the
artificially sponge mimics that of an natural sea sponge.
Patentee contends that the sponges described in the Australian patent
are patterned by cutting “away material,” which leaves smooth edges as
opposed to Patentee’s ragged, torn edges. (Br. at 11). Patentee states that
ragged edges created by tearing yield a natural sponge-like affect when used
in creating faux paint finishes. (Id.). As evidenced by the Australian
application, a person of ordinary skill in the art would have understood the
cause and effect relationship of removing portions from the face of the
sponge and the paint pattern created. Specifically, we find that one of
ordinary skill in the art could implement the teachings of the Australian
application and remove material from the face of an artificial sponge in the
manner necessary to achieve any desired “sponging” paint finish.
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