Appeal 2007-2783
Reexamination 90/005,509
Patent 5,533,499
On this record, making the truss from plastic as opposed to any other type of
flexible material provides no functional advantage or benefit. The patentee
also does not dispute that plastic is a material whose flexible characteristics
were known to one with ordinary skill at the time of the invention.
Given that plastic construction of the truss provides no disclosed
advantage in the context of the patentee’s involved patent, and that plastic
was a known flexible material at the time of the patentee’s invention, the
Examiner is correct that one with ordinary skill would have known to use
plastic for constructing Iriarte’s device. Note that Iriarte’s lamina layer is
described as being elastic and acting like a spring. (Iriarte 3:19-21).
The patentee asserts that use of plastic actually solves an important
problem (Brief 17:8-9). It is alleged in the appeal brief that there is an
“adhesion problem” between the resilient member and the flexible strip of
material within the truss, as a user’s nose twists and bends, and the patentee
discloses “a dilator using plastic bands which are compatible with an
adhesive sufficient to maintain those bands adhered to the flexible strip of
plastic material despite the bending and twisting that occurs during the
mounting and wearing of the dilator on the nose of the user.” There are
many problems with the patentee’s contention. First, the specification
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