Appeal No. 2006-0778
Application No. 10/266,917
several alternative embodiments for forming a nonwoven web 30,
one of which is a web of entangled fibers (Goulat, col. 22, ll.
39-51). Claim 1 does not limit the amount of entanglement
generated by spinlacing and, therefore, in my view it is
reasonable to conclude that nonwovens made by any method of
entanglement have the structure required by the claim. The
Examiner has properly shifted the burden to the appellants to
show that, in fact, there is a patentable difference in
structure and appellants have not met this burden. “Where a
product-by-process claim is rejected over a prior art product
that appears to be identical, although produced by a different
process, the burden is upon the applicants to come forward with
evidence establishing an unobvious difference between the
claimed product and the prior art product.” In re Marosi, 710
F.2d 799, 803, 218 USPQ 289, 292-93 (Fed. Cir. 1983).
Appellants argue that their “female component of a hook and
loop fastening system is formed by entangling fibers in a
spunlaced fabric to form loop structures without requiring any
bonding (either to other fibers or to a backing layer) to form
the loop structures.” (Brief, p. 4). They emphasize that “[i]t
is the entangling process that forms the loop structures for the
female component without the necessary for any bonding.” (Brief,
p. 4). They further argue that Goulat requires some form of
bonding to produce loop structures, either by bonding the fibers
together or by bonding the fibers to a backing layer (Brief, p.
4).
I do not find this argument persuasive. First, I, like my
colleagues, am not convinced that claim 1 excludes bonding the
nonwoven fabric to a backing (see Majority opinion, Section II,
last paragraph). Claim 1 only excludes interbonding of the
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