Appeal No. 2005-2620 Παγε 5
Application No. 09/852,712
method at all. Figure 6 of Williams depicts the two layer construction of the sheet (col.
2, lines 28 to 29; col. 5, lines 24 to 27).
With respect to the recitation in claim 16 of a square shaped tissue packet,
appellants' specification states the square shape of the tissue package improves the
rigidity of the package and increases the packages resistance to crushing (specification
at pages 5 and 6). The specification details tests that were undertaken to test the
resistance to crushing of the package and the bending strength of the package which
show that the shape of the package greatly improves the resistance to crushing and
strength of the package (specification at page 6).
Therefore, we do not agree with the examiner that modifying the APA packet so
as to have a square shape is an obvious matter of design choice. Rather, the shape of
the packet or package and the tissues which is created by the folding method results in
significant advantages and solves several problems. See In re Kuhle, 526 F.2d 553,
554, 188 USPQ 7, 8 (CCPA 1975).
In regard to the examiner’s reliance on the Wewers reference to describe the
square shape, we are of the view that there is no motivation to combine the teachings of
Wewers and APA. APA describes a tissue packet and Wewers describes a cloth
covering for china. The examiner states that Wewers is only cited to show the shape
not the contents (answer at page 3). This is not enough. In order to establish a prima
facie case of obviousness, the examiner must show that there would have been some
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