Appeal 2007-1596
Application 09/996,707
USPQ2d 1111, 1117 (Fed. Cir. 1991). We agree with Appellant that the
disclosure in the Specification (9:20-27) that the foam padding layer further
includes a flexible outer vinyl layer to provide abrasion resistance would
have reasonably conveyed to one of ordinary skill in the art that this outer
vinyl layer must necessarily reduce, to some extent, the absorption of
moisture by the inner foam padding layer. We determine that the Examiner
has not established that the originally filed disclosure would not have
reasonably conveyed to one of ordinary skill in the art that Appellant had
possession of the now claimed subject matter. See Ex parte Parks, 30
USPQ2d 1234, 1236 (BPAI 1993). Therefore, we cannot sustain the
rejection of claim 7 for lack of written description under the first paragraph
of § 112.
B. The Rejections based on § 103(a)
We determine the following factual findings from the record in this
appeal:
(1) Smith discloses a produce (egg) handling machine
comprising a stationary produce-contacting surface (the
feeder drum) on which is attached foam (sponge rubber)
padding to protect the produce (eggs) (Answer 4; Smith,
col. 1, ll. 3-5; col. 2, ll. 30-36, 40-44, and 54; and col. 3, ll.
32, 47-48, and 57);
(2) Schnider discloses a produce (egg) handling machine
including a stationary produce-contacting surface (tray 62)
including a foam (sponge rubber) padding to reduce
breakage (Answer 5; Schnider, col. 2, ll. 40-44);
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