Appeal 2007-2771
Application 10/418,661
However, we determine that the Examiner has demonstrated that the
negative limitation “membrane is not adhered to the roof deck” recited in
claims 23 through 25 and 27 introduces a new concept not provided in the
application disclosure, as originally filed, in violation of the first paragraph
of 35 U.S.C. § 112. In this regard, we note that the negative limitation in
question precludes any membrane from either directly or indirectly adhering
to the roof deck. Nowhere does the application disclosure, as originally
filed, preclude the membrane from indirectly adhering to the roof deck. As
such, we concur with the Examiner that the negative limitation in question
introduces a new concept not found in the written description of the
application disclosure, as originally filed, within the meaning of the first
paragraph of 35 U.S.C. § 112.
OTHER ISSUE
The Appellants acknowledge that in commercial roof structures, it is
common to cover the roof deck with an insulation material, a protective
material, a support material and then with a roof membrane (Specification 1-
2). The Appellants also appear to acknowledge that various coverings,
including a layered flexible base web, a fibrous sheet, a multi-layered
insulation, were known to be used prior to applying a single ply roofing
membrane (Specification 4). According to the Appellants, the claimed
flexible mat embraces any “mat…similar to the type of mat commonly used
in, but not limited to mattress construction, furniture padding, carpet
unerlayment, and sound and fire proofing in vehicles” (Specification 5).
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