Appeal No. 2005-1487
Application No. 10/383,781
reviewing court has rejected the proposition used by the examiner
(Reply Brief, pages 2-3, citing Crown Operations Int’l, Ltd. v.
Solutia Inc., 289 F.3d 1367, 1377, 62 USPQ2d 1917, 1922-23 (Fed.
Cir. 2002)).
It is well settled patent law that the discovery of a new
property of a previously known composition or product can not
impart patentability to claims to the known composition or
product. See In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433
(CCPA 1977); and In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655,
1657 (Fed. Cir. 1990). We determine that the examiner has met
the initial burden of proof in establishing a prima facie case of
anticipation, since the examiner has established a reasonable
belief that the products of Lunsford and the claimed products are
identical or substantially identical. The examiner has found,
and appellant has not disputed, that the fabrics of Lunsford
include the same amount and types of fibers as recited in claim
9 on appeal, as well as dyeing to a “single shade of color” with
dye penetrating into said fibers (see the findings discussed
above and in the Answer, page 3).
Appellant’s argument that the dyeing process to form the
claimed product differs from the dyeing process of Lunsford is
not persuasive. Appellant, although “not wishing to be bound to
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