Appeal 2006-2931
Application 10/447,009
or the crystalline melting point of the polymer property as specified by the
claimed invention. The Examiner concludes that it is reasonable to presume
that the same properties would be possessed by the nonwoven product of
Mudge (Answer 4).
Appellants contend that the Eknoian reference does not include any
teaching of crystalline ethylene segments in the polymers or the crystalline
melting point of the polymers disclosed therein. Appellants contend the
composition of the polymer alone is not a viable indicator as to the
properties of the polymer (Br. 3). The crystalline structure of polymers is
dependent upon the structure of the polymers and the manner in which
ethylene is incorporated into the polymers to form the crystalline structure
(Br. 5). Appellants contend the method by which Eknoian produces the
polymer indicates to a person of ordinary skill in the art that the polymers
would not contain crystalline ethylene segments (Br. 5). In support of this
position, Appellants refer to Examples 10-13 of the present Specification
and the Dr. Rabasco Declaration filed under 37 C.F.R. § 1.132. Appellants
further contend that the wet to dry tensile strength ratio of nonwoven webs
bonded with the polymers disclosed by Eknoian were significantly below the
wet/dry strength ratio for Appellants nonwoven web (Br. 4-5).
The second issue before us is whether Appellants have shown that the
Examiner erred in rejecting the claims under 35 U.S.C. §102(e) or, in the
alternative, under 35 U.S.C. §103(a). The issue turns on whether the
Examiner has established a reasonable belief that the property or
characteristic recited in the claims would have been inherent to the product
or process, and whether the Appellants have adequately rebutted the
Examiner's position by showing that the characteristic or property is not
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