Appeal No. 2005-0314
Application No. 10/158,717
product itself. See Scripps Clinic & Research Foundation v.
Genentech Inc., 927 F.2d 1565, 1583, 18 USPQ2d 1001, 1016, (Fed.
Cir. 1991); and In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966
(Fed. Cir. 1985).
In making her aforenoted patentability determination, the
Examiner found nothing in claim 64 which distinguished the paper
product defined thereby from the paper product of Phan. That is,
while the method steps recited in claim 64 may distinguish over
Phan’s method steps, the Examiner considers the claim 64 product,
upon which patentability is based, to be indistinguishable from
patentee’s product. In terms of a possible distinction of the here
claimed product relative to Phan’s product, the only reasonably
specific argument advanced by the Appellants appears on page 4 of
the brief and reads as follows:
Because the Phan et al. reference teaches
conventional “wet end” addition of chemical
additives and the chemical additives are not
100% retained, the Phan et al. reference does
not teach or suggest improved layer purity with
respect to the chemical additives, and as
such, does not teach or suggest the present
invention. To one skilled in the art, such a
blending of fibers, water, and chemistries as
taught in the Phan et al. reference would not
result in the level of purity as claimed in the
present invention.
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