Appeal 2007-2188
Application 10/150,667
The issue before us is: Have Appellants identified reversible error in
the Examiner’s obviousness rejection by the arguments presented in the
Brief maintaining the lack of combinability of and/or or motivation to
combine Prevorsek and Fels in a manner so as to result in the claimed
invention? We answer this question in the negative and we affirm the
Examiner’s obviousness rejection for substantially the reasons set forth in
the Answer. We offer the following for emphasis.
Appellants argue that Fels requires the use of a hard solid coating to
furnish puncture protection and that the low base weight fabrics of 50-500
g/m2 would militate against the Examiner’s motivation to employ a low base
weight fabric of Fels as a protective layer in Prevorsik (Br. 5-7). We
disagree for several reasons. At the outset, we note that representative
claim 1 employs the open transitional term “comprising” leaving the claimed
protective material open to the inclusion of other materials and layers
besides low base weight fiber formed fabric layers. See Exxon Chemical
Patents Inc. v. Lubrizol Corp., 64 F.3d 1553, 1555, 35 USPQ2d 1801, 1802
(Fed. Cir. 1995); In re Baxter, 656 F.2d 679, 686, 210 USPQ 795, 802
(CCPA 1981). Furthermore, as explained by the Examiner in the Answer,
one of ordinary skill in the art would have been led to employ low base
weight fabric in Prevorsek for the wearing comfort thereof as well as the
contribution thereof to the protective properties of a protective material
article made with such a fabric being a part thereof (Answer 5 and 6). In this
regard, the Examiner has explained that the provision of other reinforcing
protective elements in the protective material or garment is contemplated by
both Prevorsek and Fels (id.).
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