Appeal 2007-1898
Application 10/360,622
met their burden of showing that they are not. For each ground of rejection,
we determine that the Examiner has established that the prior art discloses a
rubber foam having closed cells with holes completely penetrating
therethrough in only the compressing direction (see factual findings (1)
through (4) listed above). We determine that claim 1 on appeal merely
requires a closed cell rubber foam with needle holes penetrating through the
foam in only the compressing direction, with a property of a specified
permeability.2 Although Appellants correctly state that the references are
silent as to the degree of permeability (e.g., Br. 5), the recitation of a
property not disclosed by the prior art does not render an otherwise known
product patentable. See Skoner, supra. We determine that the Examiner has
established that the references disclose a product identical or substantially
identical to the claimed closed cell rubber foam with holes, where the
product has closely spaced holes in the compressing direction (factual
finding (1) listed above), has holes within the claimed diameter range made
by needle punching (factual findings (2) and (4) listed above), and contains a
teaching that the diameter and spacing between holes depends on the
perforation (i.e., permeability) desired (factual finding (4) listed above).
Accordingly, we determine that the Examiner has established a sound basis
that the products of the prior art and the claimed products are the same or
substantially the same, and Appellants have not submitted any convincing
evidence or arguments to the contrary.
For the foregoing reasons and those stated in the Answer, we affirm
all grounds of rejection in this appeal.
2 Appellants do not argue any claim with specificity. Therefore we select
claim 1 on appeal as a representative claim. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2006).
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