Appeal No. 2006-0885
Application No. 10/168,883
basis weight of the barrier fabric, the Examiner asserted that the leakage
under 1 psi of pressure, air permeability value, and moisture breathability
value properties were inherent in the invention of Levy.
The Examiner asserted that the invention of Levy differed from the
subject matter of claim 1 by not describing the core material as
comprising absorbent gelling material wrapped with a tissue material.
The Examiner relied on the teachings of Kramer for disclosing that it
would have been obvious to wrap the absorbent core materials of Levy
with a tissue material to immobilize the absorbent particles at the
interfaces. (Answer, p. 4).
Due to the identified similarity in properties between the invention
of Levy and claim 1, we determine that the Examiner has met the initial
burden of establishing a prima facie case of unpatentability under
§§ 102/103. Therefore, the burden has been shifted to Appellants to
show that the claimed product differs substantially from the product
disclosed by Levy. See In re Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 596
(CCPA 1980); In re Fessmann, 489 F.2d 742, 744, 180 USPQ 324, 326 (CCPA
1974). Appellants have not directed us to evidence that the product of
Levy is substantially different than the claimed product.
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