(dissenting).
I am constrained to disagree with my colleagues in this case.
Appellant does not apparently contend that any part of the basic structure of his tire, other than the supporting cord ply construction of the tread, is novel. Yet he does contend and the court has found, that it is unobvious to increase the thickness of rubber layers between the cord plies of the tread, outwardly towards the periphery thereof. To me the varying cord ply spacing is the only element in the claim upon which patentability could possibly be predicated, and I am unconvinced that such a feature is one which would be unobvious to one of ordinary skill in the art.
The appealed claim recites the provision of “ * * * at least three tread plies * * *, the radial spacing of said tread plies progressively decreasing from the radially outer to the radially inner plies.” The specification states only that “ * * * this graduated spacing is desirable in that it provides a tire with increasing elasticity toward the tread face * * *.” Whatever may be the advantages of appellant’s commercial tire, achieved by varying the longitudinal bias angle of the tread reinforcing cords in order to improve stress distribution, or by utilizing a simple tread design, these limitations are not recited in the appealed claim. The claim solely requires three plies in the tread with a variation in thickness in the two separating layers of rubber. The only disclosed advantage in the record relates to “* * * increasing elasticity * * * ”; I deem it obvious to the skilled technician in this art, in view of the teachings of Tuttle and Hopkinson that by increasing the proportion of tread rubber relative to the reinforcing cords, the elasticity of the tread would be increased.
In order to apply the teachings of a reference in combination with another to meet the recitations of a claim, the disclosure of the former need not be bodily incorporated into the latter. In re Att-wood, 45 CCPA 824, 253 F.2d 234. That Tuttle and Hopkinson teach varying the rubber thickness in the carcass rather than in the tread is not therefore crucial; it is Tuttle’s and Hopkinson’s disclosures of the inherent advantages of variation of thickness of rubber separating layers between cord reinforcing plies which provides the needed concept. Thus, it would be obvious to the skilled technician in this art to modify the broad structural combinations including multiple cord plies in the tread taught by Lejeune, Hop-kinson, Musselman or Liáis, by increasing the proportion of rubber outwards towards the periphery of the tread so as to “increase elasticity,” when informed by Tuttle of the inherently improved “» * * wearing qualities * * * ” and “ * * * longer life * * * ” of tires, and by Hopkinson of the cushioning effect against severe blows which cushioning effect tends “to prevent the separation of the outer plies from each other,” when rubber thickness between supporting plies is increased radially outwards.
In view of the above, I would affirm the decision of the Board of Appeals.