Appeal 2007-1365
Reexamination Control 90/006,595
Patent 6,289,548
decorative finishes on painted walls. The Australian application teaches that
artificial sponges can be used to create desired patterns. In particular, the
Australian application teaches that any desired pattern can produced on
painted surfaces by painting with sponges that had sufficient portions of the
sponge face removed. Based upon the teachings of the prior art, one of
ordinary skill in the art would have understood that a desired paint pattern
may be created by removing portions from the surface of a paint roller to
achieve the desired sponge painting effect.
Patentee contends that the Australian application teaches away from
Patentee’s claimed beveled corner roller as required by claims 2, 3, 9, 10, 16
and 17. (Ans. at 12). In particular, Patentee states that the Australian
application describes its edges as substantially flat in order to avoid overlap
marks. (Id.). Patentee states that Wakat shows a beveled corner roller.
(Id.). One of ordinary skill in the art would have understood that the use of a
beveled roller would aid in the painting of corners and that the Australian
application does not teach otherwise.
Patentee argues that the prior art references fail to describe the use of
a rotating grinding wheel to tear the face of the sponge as required by claims
6, 13, and 20. (Br. at 12). As discussed above, Patentee’s grinding wheel
recitation is a product-by-process limitation. Patentee has failed to
demonstrate that the use of a grinding wheel creates a sponge face surface
that is distinct from that suggested by the prior art, i.e., removing surface
material such that the resulting surface creates the desired paint effect.
Patentee also contends that the prior art fails to show the depth of the
pattern, such as the 0.5 inches to 0.75 inches set forth in Patentee’s claim 7.
Wakat however, describes the use of 0.5 inch nap portions to create irregular
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