Appeal No. 2002-2298 Page 7
Application No. 09/442,442
though the prior product was made by a different process.). See also Atlantic
Thermoplastics Co. v. Faytex Corp., 970 F.2d 834, 8443-47, 23 USPQ2d 1481, 1488-
91 (Fed. Cir. 1992).
In our view, the appellant has not been provided with a rationale supporting a
conclusion that the claimed product appears to be the same or similar to that of the
prior art, although produced by a different process. In that regard, the examiner has not
established that the apertured web produced by Turi would have a reduced number of
incompletely formed apertures when compared to an apertured web made using a
support structure and a forming member but without a porous structure in between. In
fact, since Turi does not have a porous structure in between the support structure (i.e.,
conveyor belt 62) and the forming member (i.e., backing member 64), the apertured
web produced by Turi would have the same number of incompletely formed apertures,
not a reduced number of incompletely formed apertures as set forth in the claims under
appeal.
For the reasons set forth above, the decision of the examiner to reject claims 44
to 47 under 35 U.S.C. § 102(b) or, in the alternative, under 35 U.S.C. § 103 is reversed.
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