Appeal 2007-1563
Application 10/462,067
products do not necessarily or inherently possess the characteristics of the
claimed product. Best, 562 F.2d at 1255, 195 USPQ at 433.
Contrary to Appellants’ argument regarding Chen’s lack of disclosure
regarding the bump radius, the above disclosures regarding the identity of
the protrusion density and height provide a reasonable basis in fact to
believe that the depth and the number of the surface features (i.e.,
topological features) of Chen’s basesheets (i.e., a first three-dimensionally
patterned stabilized absorbent layer) would yield a vertical area per
projected area that falls within the range claimed by Appellants.
Accordingly, the burden shifted to Appellants to prove that the claimed
topological features are different than those of Chen such that the claimed
vertical area per projected area claim feature is not satisfied. Id. Appellants
have not proffered any evidence that Chen’s absorbent material has different
topological features and different vertical areas per projected areas as
claimed. Appellants have not satisfied their burden.
Accordingly, we affirm the Examiner’s § 103(a) rejection of argued
claim 24, and non-argued claims 25, 27-40, and 42-44.
DEPENDENT CLAIMS 8 AND 26
Appellants argue that Chen does not disclose that the absorbent core 5
(i.e., second absorbent layer) contains an unstabilized mixture of fluff fibers
and superabsorbent particles, but rather only a stabilized second absorbent
layer (Br. 10 and 11). Moreover, Appellants argue that “if there was any
motivation to incorporate Hansen’s non-fugitive densification agents into
Chen’s absorbent core 5 (i.e., second absorbent layer or fibrous mat) it
would be to do so in the context of stabilized absorbent materials” (Br. 12).
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