Appeal 2007-2028
Application 11/058,147
materially affect the basic and novel properties of the invention.” PPG
Indus. Inc. v. Guardian Indus. Corp, 156 F.3d 1351, 1354, 48 USPQ2d
1351, 1353-54 (Fed. Cir. 1998). Moreover, Appellants bear the burden of
establishing that the ingredients present in the prior art composition are
excluded by the “consisting essentially of” claim language. In re De
Lajarte, 337 F.2d 870, 874, 143 USPQ 256, 258 (CCPA 1964).
In the instant case Appellants do not provide, and we do not see, any
evidence that the hydrophilic fibers that would be present in a colored
version of Benjamin’s absorbent pad would affect the basic and novel
properties of the invention. To the contrary, as discussed above, the
Specification discloses that Appellants’ litter compositions may contain up
to 60% by weight of various supplemental absorbent materials similar to
those employed in Benjamin’s fibers, including paper, cellulosic webs, and
polymeric fibrous webs (Specification 11:6-21). This suggests that such
materials would not affect the basic and novel properties of the claimed
invention. We therefore agree with the Examiner that one of ordinary skill
would have considered claim 20 obvious over Benjamin and Cowan.
We affirm the rejection of claims 19 and 20. The Appeal Brief
provides no separate argument for claims 7-9 and 11-13. These claims
therefore fall with claims 19 and 20.
5. OBVIOUSNESS -- CLAIM 10
Claim 10 stands rejected under 35 U.S.C. § 103 as obvious over
Benjamin, Cowan, and Ito (Answer 3). The Examiner urges that, although
neither Benjamin nor Cowan teaches the use of the dyes of claim 10 in
coloring a litter composition, “[i]t would have been obvious to one having
11
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