Appeal No. 2005-1969 5
Application No. 09/933,291
The Examiner has not placed on the record an affirmative statement regarding
how the claim language is being interpreted. Rather, we must read between the lines of
the rejection and the response to argument to determine the Examiner’s thinking on the
matter. Looking to the Answer, we note that the Examiner finds that Darnett describes
an absorbent pad having the required lower non-woven fiber layer having a hydrophilic
composition thereon (i.e. viscose) (Answer, p. 4). The Examiner further explains, in the
Response to Argument section of the Answer, that:
DARNETT teaches the sheets used for the pad comprise a blend of
cellulose fibers and thermoplastic fibers with one example including a
bottom sheet made from a polyester fiber and viscose fiber blend. As
indicated in the rejection, the viscose portion was understood to be the
hydrophilic composition. The fibers, blended together, would meet the
limitation of a nonwoven fiber (e.g. polyester fibers) with a hydrophilic
composition (viscose fibers) thereon, since a mixture would result in
viscose fibers being "on" the polyester fibers.
(Answer, pp. 9-10). From the above statements, we determine that the Examiner is
interpreting “hydrophilic composition” to encompass viscose fibers “on” polyester fibers.
This interpretation of “hydrophilic composition” is at odds with the commonly accepted
meaning of “composition”. As the term is generally used, it refers to a mixture of
substances. See PIN/NIP Inc. v. Platte Chemical Co., 304 F.3d 1235, 1243, 64
USPQ2d 1344, 1349-50 (Fed. Cir. 2002)("The term ‘composition' in chemistry is
well-established. It generally refers to mixtures of substances."). That being said, it is
necessary to look to the specification to determine if Appellants gave “composition” a
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