Appeal 2007-1373
Application 10/651,687
Applying the preceding legal principles to the factual findings in the
record of this appeal, we determine that the Examiner has properly
established a prima facie case of anticipation and obviousness, which prima
facie case has not been adequately rebutted by Appellants’ arguments. As
shown by factual findings (1) through (3) listed above, and not contested by
Appellants, we determine that Feitlowitz and Cross disclose a textile
composite comprising a textile substrate and a polymer facing. As
established by the Examiner (Answer 6-7), we determine that Feitlowitz and
Cross disclose textile substrates and polymers as well as methods of
impregnating the polymers into the textile substrate that are the same or
similar to those disclosed by Appellants (e.g., see factual findings (1), (2),
and (4) listed above as compared to claim 79 on appeal). As admitted by the
Examiner, the claimed values of Kawabata stiffness and surface friction are
not disclosed by Feitlowitz or Cross (Answer 3-4). However, we determine
that the Examiner has established that the products of the prior art
reasonably appear to be the same or substantially similar to those claimed.
Thus the burden has been shifted to Appellants to prove that the claimed
products are not the same or similar to the prior art products. See In re Best,
supra; In re Spada, supra. We determine that Appellants have not met this
burden. Merely reciting variables in the claims that are not found in the
prior art does not render a product patentable. See In re Skoner, supra.
Additionally, as shown by factual findings (1), (3), and (4) listed above, we
determine that Feitlowitz and Cross teach the control and testing of stiffness
to achieve the desired result, and thus the determination of optimum or
desired values would have been well within the ordinary skill in the art.
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