Appeal No. 2006-0827
Application 10/025,214
substances of cotton-type materials which, for example, account for
5 to 8 wt. %, preferably 6 to 7 wt. %, of the entire material”
(column 4, lines 65-68, emphasizes added). Hence, Putzier simply
teaches that an especially preferred embodiment for the wrapper is a
cotton-type material containing the recited amount of binder. It is
well-settled that a reference disclosure must be considered for all
that it fairly teaches, not just its preferred embodiments.
Accordingly, we agree with the examiner that one of ordinary skill
in the art would have found it obvious to balance the various
parameters of strength, absorbency, etc., in determining the optimum
amount of binder in the wrapper. It has generally been held that
where patentability is predicated upon a change in the condition of
a prior art composition, such as a change in concentration or the
like, the burden is on the applicant to establish with objective
evidence that the change is critical, i.e., it leads to a new,
unexpected result. In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d
1934, 1936 (Fed. Cir. 1990); In re Aller, 220 F.2d 454, 456,
105 USPQ 233, 235 (CCPA 1955). In the present case, appellants have
proffered no evidence that the claimed amount of absorbency in the
wrapper produces any unexpected result.
Regarding the rejection under Section 103 over Everett in view
of GB ‘648, we agree with the examiner that GB ‘648 establishes the
obviousness of incorporating non-irritating binders into the wrapper
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