Ex parte Seibert et al.

Board of Patent Appeals and Interferences

Aug 16, 1999

08230825 (B.P.A.I. Aug. 16, 1999)

Application for patent filed April 21, 1994. 1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was
not written for publication in a law journal and (2) is not binding
precedent of the Board.
Paper No. 13
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte LESLIE E. SEIBERT and PRASHANT CHAWLA
____________
Appeal No. 96-3720
Application No. 08/230,8251
____________
ON BRIEF
____________
Before JOHN D. SMITH, GARRIS, and SPIEGEL, Administrative
Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the final rejection
of claims 5-12 and from the refusal of the examiner to allow
Appeal No. 96-3720 Page 2
Application No. 08/230,825
claims 1-4 as amended subsequent to the final rejection. These
are all the claims remaining in the application.
The subject matter on appeal relates to a material which
comprises two sheets of microporous plastic film bonded
together with an adhesive, the plastic film having pores of a
sufficient size such that the adhesive migrates into the pores
forming a continuous layer between the two sheets of film.
Further details of this appeal subject matter are set forth in
representative independent claim 1 which reads as follows:
1. A material for use in the manufacture of surgical
gowns and the like and which comprises two sheets of
microporous plastic film bonded together with an adhesive, the
plastic film having pores of a sufficient size such that the
adhesive migrates into pores forming a continuous layer between
the two sheets of film to provide a breathable but
substantially liquid and viral impervious laminated core, and
two layers of fabric that cover and protect said core.
The reference relied upon by the examiner as evidence of
obviousness is:
Lumb et al. (Lumb) 5,204,156 Apr. 20,
1993
All of the claims on appeal stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Lumb.
Appeal No. 96-3720 Page 3
Application No. 08/230,825
We cannot sustain this rejection.
As correctly indicated by the appellants, Lumb teaches in
column 5 that the adhesive must be discontinuous so as not to
interfere with the moisture vapor transport properties of the
fabric whereas the claims on appeal expressly require that the
adhesive forms "a continuous layer" (see each of the appealed
independent claims 1, 5 and 9) between the sheets or layers of
film. This argument by the appellants has not been even
acknowledged much less rebutted by the examiner on the record
before us. As a consequence, the examiner necessarily has
failed to carry her initial burden of establishing a prima
facie case of obviousness within the meaning of 35 U.S.C. §
103.
For the above stated reasons, we cannot sustain the § 103
rejection of claims 1-12 as being unpatentable over Lumb.
The decision of the examiner is reversed.
Appeal No. 96-3720 Page 4
Application No. 08/230,825
REVERSED
JOHN D. SMITH )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
BRADLEY R. GARRIS ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
CAROL A. SPIEGEL )
Administrative Patent Judge )
BRG/jlb
Appeal No. 96-3720 Page 5
Application No. 08/230,825
ROBERT B. KENNEDY
KENNEDY & KENNEDY
400 NORTHPARK TOWN CENTER
SUITE 1250
ATLANTA, GA 30328