Appeal No. 2005-1487
Application No. 10/383,781
this theory,” believes that the use of higher dyeing temperatures
under low agitation forms dyed fabric fibers with greater
strength and durability (Brief, page 4; Reply Brief, page 3).
However, the dyeing temperatures taught by Lunsford include
temperatures used in appellant’s dyeing process (see Lunsford,
col. 6, ll. 58-60; col. 7, ll. 54-56 and Table II; compare with
appellant’s specification, page 4, l. 2). Furthermore, Lunsford
teaches many types of dyeing processes and is not restricted to
“dye jets” (col. 5, l. 31) or other “high” agitation processes
(see col. 3, ll. 31-42 and 50-52; and col. 5, ll. 20-32). It is
also noted that both Lunsford and appellant use dye assistants in
their processes (Lunsford, abstract; appellant’s specification,
page 7). Accordingly, it was reasonable for the examiner to
infer that the dyeing by both Lunsford and appellant of identical
materials in identical amounts, employing the same or
substantially the same dyeing process, would produce fabric
blends having the identical composition, and thus necessarily the
same properties. See Spada, 911 F.2d at 708, 15 USPQ2d at 1657-
58.1 We note that each case is determined on its own merits;
1We note that the case cited by appellant (Crown, supra) on
pages 2-3 of the Reply Brief concerns an invalidity action with
entirely different burdens of proof and standards of evidence
than in ex parte prosecution (see 289 F.3d at 1377, 62 USPQ2d at
5
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