Appeal No. 2026-0818
Application No. 10/175,064
The appellants argue that the Rule 132 declaration by
Harry Y. Hu (filed December 30, 2004) establishes that there is
no predictability or equivalency regarding use of any particular
sheath material in a core-sheath carpet fiber which exhibits
improved dye resistance (brief, page 4). The appellants argue
that Lin makes no distinction between homopolymers and copolymers
of nylon 6,12 or between nylon 6,12 and 6,10 homopolymers,
whereas the Hu declaration demonstrates the selectivity of
nylon 6,12 homopolymers compared to some other polymers and
copolymers including nylon 6,12 copolymer (brief, pages 5-6).
The Hu declaration is not effective for overcoming the prima
facie case of obviousness because what is compared to the prior
art is not the claimed invention. See In re Baxter Travenol
Labs., 952 F.2d 388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991);
In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir.
1984). The claimed invention is ozone fade resistant fibers dyed
with an acid dye. Hu tested the resistance of undyed fibers to
red food and coffee stains.4
The appellants argue that Lin does not suggest that the
disclosed sheath/core fibers can be dyed to exhibit the ozone
4Hu’s declaration merely shows the red food and coffee stain
resistance of Lin’s undyed fibers.
5
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