Appeal 2007-1898
Application 10/360,622
ISSUES ON APPEAL
Claims 1, 4, 5, and 9 stand rejected under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
unpatentable over Tye (Answer 3).1
Claims 1 and 4-8 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over JP ‘558 in view of EP ‘500 (Answer 4).
Claims 1, 4, 5, 7, 8, 10, and 11 stand rejected under 35 U.S.C.
§ 102(e) as anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
unpatentable over Brandolini (Answer 5).
Claim 6 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Brandolini (Answer 6).
Claims 1, 4-8, 10, and 11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Brandolini in view of Farison (Answer 7).
Appellants contend that the examples of Tye have hole diameters of
7 mm and 12.7 mm, a hole center to center spacing of 25 mm and 19 mm,
respectively, and thus are hardly anticipatory of “needle holes” as
understood by one skilled in the art (Br. 4).
Appellants contend that Tye is silent on permeability, the Examiner’s
position of “inherency” is completely unsubstantiated, and foam density
alone would have an effect on permeability (Br. 5-6).
Appellants contend that the Examiner cannot apply an “inherency”
theory to the rejection over JP ‘558 in view of EP ‘500 since inherency only
may be applied under § 102 (Br. 8).
1 We note that claim 9 has been cancelled by Appellants (Br. 2). Although
Appellants list this claim as rejected over Tye (Br. 3), as does the Examiner
(Answer 3), we do not consider claim 9 as included in the rejection over
Tye.
3
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Last modified: September 9, 2013