Appeal 2007-2135
Application 10/269,840
TIMM, Administrative Patent Judge, dissenting
I respectfully dissent from the decision of my colleagues. In my view,
Appellants have not shown that the Examiner reversibly erred. Considering
the prior art from the viewpoint of one of ordinary skill in the rubber
processing art, a preponderance of the evidence supports the Examiner’s
conclusion that it would have been obvious to one of ordinary skill in the art
to form a thin-walled rubber article as claimed in claim 1, the only claim at
issue in this appeal.
While my colleagues and the Appellants are correct that Noecker’s
invention is directed to a vulcanization system that does not use sulfur, and
the conventional accelerators normally used with sulfur, a reference can be
used as prior art for all it teaches. Use of a patent as a reference is not
limited to what the patentee describes as their own invention. In re Heck,
699 F.2d 1331, 1333, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re
Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968)).
Noecker teaches the following:
Rubber is a very common compound. It is available in many
different compositions and forms such as rubber latex. In
conventional processes for forming rubber, or for forming
products from rubber, rubber is cured or vulcanized so as to
join the molecules within the rubber composition together
giving the rubber composition desired strength and toughness.
Most typically sulphur and sulphur donating compounds are
used as the primary curing or vulcanizing agents.
(Noecker, col. 1, ll. 24-32).
Sulphur is not normally used alone. The typical sulphur-curing
system uses, along with the sulphur-based primary curing agent,
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