Ex parte Chase

Board of Patent Appeals and Interferences

Mar 30, 1998

08222584 (B.P.A.I. Mar. 30, 1998)

Application for patent filed April 4, 1994.1
-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journal and (2) is not binding precedent of the Board.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 ASCHER CHASE
________________
Appeal No. 97-2243
Application 08/222,5841
________________
ON BRIEF
________________
Before CALVERT, ABRAMS and McQUADE, Administrative Patent Judges.
McQUADE, Administrative Patent Judge.
DECISION ON APPEAL
This appeal is from the final rejection of claims 1 through
4 and 7. Claims 5 and 6, the only other claims pending in the
application, stand withdrawn from consideration pursuant to
37 CFR § 1.142(b) as being directed to a non-elected invention.
Appeal No. 97-2243
Application 08/222,584
An English language translation of this reference,2
prepared by the Patent and Trademark Office, is appended hereto.
-2-
The invention relates to an above-ground swimming pool
having a light-weight plastic wall which “requires no internal
reinforcement or external support of any kind against the outward
pressure of the water contained therein” (specification, page 1).
Claim 1 is illustrative and reads as follows:
1. An above-ground frameless swimming pool comprising:
(a) a self-standing flexible semi-rigid upstanding
catastrophic failure proof cylindrical plastic wall;
(b) said wall being formed of polypropylene having
lamiminated thereto a reinforcing woven mesh fabric of
polypropylene, said laminated wall having a sufficient
weight-to-strength ratio and semi-rigidity that the wall is
self-supporting;
(c) a water-retaining right cylindrical liner disposed
within and supported by said wall; and
(d) a coping member disposed over the upper part of said
wall to secure upper portions of said liner thereto.
The references relied upon by the examiner as evidence of
obviousness are:
Jaschek et al. (Jaschek) 4,405,341 Sept. 20, 1983
Trower 1,049,272 Nov. 23, 1966
(British Patent Document)
Neuenschwander 2,145,560 Apr. 19, 1973
(German Patent Document)2
Appeal No. 97-2243
Application 08/222,584
-3-
The appealed claims stand rejected under 35 U.S.C. § 103 as
follows:
a) claim 7 as being unpatentable over Trower in view of
Jaschek; and
b) claims 1 through 4 as being unpatentable over Trower in
view of Jaschek, and further in view of the German reference.
Reference is made to the appellant’s brief (Paper No. 10)
and to the examiner’s answer (Paper No. 12) for the respective
positions of the appellant and the examiner with regard to the
merits of these rejections.
Trower discloses an above-ground swimming pool composed of
an inner water-tight liner 10, an intermediate layer 14 and an
outer support wall 12. The liner 10 is a flexible sheet of
polyvinylchloride or polythene, the intermediate layer is a heavy
duty, semi-rigid sheet of synthetic plastic, and the outer
support wall is a woven, semi-rigid, self-supporting sheet of
wire or small diameter rod. A coping in the form of a split-tube
hand rail covers the upper peripheral edge of the pool.
As implicitly conceded by the examiner, Trower does not
teach and would not have suggested a swimming pool comprising a
wall formed of a plastic material having laminated thereto
Appeal No. 97-2243
Application 08/222,584
-4-
a reinforcing woven mesh fabric as is required by independent
claims 1 and 7. Although Trower’s intermediate layer 14 and
outer wall 12 respectively constitute a plastic material and a
reinforcing woven mesh material, the outer wall 12 is not
laminated to the intermediate layer 14.
Jaschek pertains to coated fabrics featuring enhanced
adhesion between the fabric and the coating mix. These fabrics
have a high degree of flexibility (see column 1, lines 57 through
60) and are said to “find a great many diverse applications in
industry as well as everyday life; e.g. in air-supported
structures, stadium roofing/cover, packaging materials,
tarpaulins, rubber/pneumatic rafts, roof truss insulations, etc.”
(column 1, lines 14 through 17). Depending on the particular
use, the flexibility or rigidity of the fabric can be adjusted by
judicious selection of the coating mix constituents (see column
3, lines 27 through 30).
According to the examiner, it would have been obvious to one
of ordinary skill in the art in view of the teachings of Jaschek
to laminate Trower’s intermediate layer 14 and outer wall 12 to
one another, thereby arriving at a swimming pool meeting the
above noted limitations in claims 1 and 7 (see pages 3 and 4 in
the answer).
Appeal No. 97-2243
Application 08/222,584
-5-
Rejections based on 35 U.S.C. § 103 must rest on a factual
basis. In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 177-78
(CCPA 1967). In making such a rejection, the examiner has the
initial duty of supplying the requisite factual basis and may
not, because of doubts that the invention is patentable, resort
to speculation, unfounded assumptions or hindsight reconstruction
to supply deficiencies in the factual basis. Id.
In the present case, Trower and Jaschek do not justify the
examiner’s conclusion that it would have been obvious to one of
ordinary skill in the art to laminate Trower’s intermediate layer
14 and outer wall 12 to one another. In short, the semi-rigid,
self-supporting pool wall defined by Trower’s intermediate layer
14 and outer wall 12 and the highly flexible coated fabrics
disclosed by Jaschek have little, if any, meaningful relevance to
one another. The only suggestion to combine these two references
in the manner proposed by the examiner stems from impermissible
hindsight knowledge derived from the appellant’s own disclosure.
Moreover, this deficiency in the basic Trower-Jaschek combination
is not cured by the German reference which discloses a pool wall
laminate consisting of a polyurethane foam core sandwiched
between polypropylene liners.
Appeal No. 97-2243
Application 08/222,584
-6-
Thus, the references applied by the examiner do not provide
the factual basis necessary to support a conclusion that the
differences between the subject matter recited in claims 1 and 7,
and in claims 2 through 4 which depend from claim 1, and the
prior art are such that the subject matter as a whole would have
been obvious at the time the invention was made to a person
having ordinary skill in the art. Accordingly, we cannot sustain
the standing 35 U.S.C. § 103 rejections of these claims.
The decision of the examiner is reversed.
REVERSED
IAN A. CALVERT )
Administrative Patent Judge )
)
)
)
NEAL E. ABRAMS ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
JOHN P. McQUADE )
Administrative Patent Judge )
Appeal No. 97-2243
Application 08/222,584
-7-
Schweiter, Cornman & Gross
230 Park Avenue
New York, NY 10169