Interference No. 105,019
Correa v. Roberts
It appears that Correa has not fully appreciated (1) that the prior art need not teach the
range or "spread" recited in claims 5 and 6 but only something failing within the recited range to
meet those claims, and (2) that it, as the moving party, bears the burden of proof as is indicated in
37 CFR § 1.637(a). Correa makes no mention of what was the standard or conventional width of
the absorbent core for a sanitary napkin of various types, at the time of filing of Correa's involved
application on November 22, 1993. Correa makes no mention of the width of the absorbent core
for sanitary napkins of various types which were sold on the open market at the time of filing of
Correa's involved application on November 22, 1993. While it is true that Sneller does not
specify the width of its absorbent core in conjunction with its raised barrier which is 15mm wide,
it cannot be reasonably disputed that one with ordinary skill in the art, who according to the
parties typically possesses at least a bachelor's degree in chemistry or chemical engineering,
material science or other fields of engineering such as mechanical engineering and three to five
years of experience in industry, would not see fit to use a width for the absorbent core that is
consistent with what was standard, conventional, or generally available at the time.
What is before us is not an obviousness rejection from an examiner in an ex parte appeal,
where it is the examiner who bears the initial burden of showing prima facie obviousness. Here,
the initial designation of claims as corresponding or not corresponding to the count in the Notice
Declaring Interference is presumed to be correct and it is party Correa as the moving party
seeking to change the status quo who bears the burden of proof to show nonobviousness. In that
context, the silence of Correa's Preliminary Motion 5 with regard to the standard or conventional
core width in the industry or what was generally available on the market is deafening. To be
- 25
Page: Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
Last modified: November 3, 2007