Appeal 2007-2138
Application 10/645,885
characteristic necessarily flows from teachings of applied prior art). To the
contrary, comparative examples in Appellants' Specification reveal that
textiles formed of these fiber materials may have Air Permeabilities below,
as well as in, the here claimed range (Spec. 12).
Moreover, we cannot agree with the Examiner's conclusion that
Appellants' claimed Air Permeability values would have been obvious based
on the optimization of a result effective variable (Ans. 10-11). This is
because the Air Permeability of Suskind's Example 4 fabric is disclosed as
148 (Table III) which is far below the minimum Air Permeability of the
appealed claims. These circumstances favor a conclusion of nonobviousness
rather than obviousness. See In re Sebek, 465 F.2d 904, 907 (CCPA 1972).
In light of the foregoing, we cannot sustain the Examiner's § 103
rejection of claims 1, 3, 4, 13-15, 17, and 19-22 as being unpatentable over
Suskind in view of Bouchette. We also cannot sustain the corresponding
rejections of the remaining claims on appeal as unpatentable over the
aforementioned prior art and further in view of Wagner and Bergquist since
these last mentioned references are not relied upon by the Examiner for
supplying the above discussed deficiencies of Suskind and Bouchette.
CONCLUSION
The decision of the Examiner is reversed.
REVERSED
cam
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