Appeal 2007-1365
Reexamination Control 90/006,595
Patent 6,289,548
Patentee presented to the Examiner some paint rollers and samples.
Patentee maintains that the paint rollers and samples it provided to the
Examiner demonstrate that there is a difference between torn edges and cut
edges. The Examiner was not impressed. We have reviewed the paint roller
samples Patentee provided the Examiner. Patentee is correct that the torn
artificial sponges provide a different paint pattern than artificial sponges that
have material removed to leave smooth edges. However, whatever one is
supposed to learn from the paint rollers and samples, would not negate the
Examiner's finding that one of ordinary skill in the art would have been able
to implement the teachings of the Australian application and remove the
material from the surface of the artificial sponge to produce any desired
pattern, i.e., would have understood that a smooth edge on a paint roller
leaves a different paint pattern from that of a paint roller having torn edges.
KSR at 1740, 82 USPQ2d at 1396 (“If a person of ordinary skill can
implement a predictable variation, §103 likely bars its patentability.”).
As to dependent claims 5-7 and 9-12, Patentee states:
With respect to appealed claims 5, 12, and 19, Australia ‘405
does not mention types of elastomeric materials, such as those
listed in this claim. With respect to appealed claims 6, 13, and
20, Australia ‘405 only mentions cutting. It specifically, does
not recognize the use of a grinding wheel in order to tear away
sponge material. With respect to appealed claim 7, there is no
teaching in Australia ‘405 that depth of pattern is important, nor
even a design variable.
(Br. at 11). Note, claims 19 and 20 were not rejected over the Australian
reference alone.
I'd put n. 2 right here as text. The Patentee admits that “foam rollers
were known prior to his invention.” (Br. at 12). Patentee does not dispute
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