Appeal No. 1996-2960
Application 08/192,027
on the multilayered products of the secondary references into the internal surfaces of
multiply tissue. Where the examiner fails to establish a prima facie case, the rejection is
improper and will be overturned. In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598
(Fed. Cir.1988). We, therefore, reverse the rejection of the claims under 35 U.S.C. § 103.
Other Issues
On the record before us, it reasonably appears that both applicants and the
examiner have interpreted the claims as limited to the use of printing, dyes or other form of
coloring to yield patterns on the interior surfaces of the layers of tissue. It is axiomatic that,
in proceedings before the PTO, claims in an application are to be given their broadest
reasonable interpretation consistent with the specification. In re Zletz, 893 F.2d 319, 321,
13 USPQ2d 1320, 1322 (Fed. Cir. 1989). Claim language also should be interpreted as it
would be interpreted by one of ordinary skill in the art. In re Sneed, 710 F.2d 1544, 218
USPQ 385 (Fed. Cir. 1983). Should further prosecution occur in this application we would
urge the examiner to considered whether the claims reasonably encompasses multiply
tissue where the pattern present on the internal surfaces are other than printed, dyed or
colored to give a pattern on an internal surface of one or more of the plies. For example, if
the tissue layers were embossed, the pattern would be present on the internal surfaces of
the multiply tissue and yet remain visible on the outside surfaces. Should the examiner
determine
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