Appeal No. 2005-1207
Application No. 10/126,342 Page 5
meltblown fibers resulting in the particles being adhered to the
fibers via a partial embedding of the particles in the fibers;
that is, the air-entrained particles would penetrate the
surface(s) of the tacky fibers upon contact therewith.2
Appellants argue that Brooker does not explicitly disclose
that the particles penetrate the surface(s) of the meltblown
fibers. However, the examiner’s assertion of obviousness is not
premised on an explicit disclosure of surface penetration of the
fibers by the particles being supplied by Brooker. Rather, it is
the reasonableness of the expectation of such penetration by
following the teachings of Brooker based on the record before us
that is at issue. Consequently, the argument of appellants
regarding the lack of an explicit disclosure at best sets up the
issue in the case before us rather than being a persuasive
argument against the examiner’s position as such an explicit
disclosure is unnecessary for a determination of obviousness.
After all, it is well settled that when a claimed product appears
substantially the same as a product disclosed by the prior art,
the burden is properly upon appellants to prove with objective
2 See the definitions of penetrate and surface at pages 896
and 1218 of The American College Dictionary; Barnhart (Editor in
Chief); Random House; 1970; a copy is attached to this decision.
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