Appeal 2006-2949
Application 10/012,768
Cir. 1997); In re Zletz, 893 F.2d 319, 321-22, 13 USPQ2d 1320, 1322 (Fed.
Cir. 1989).
Furthermore, the use of the open-ended term “comprising” in
transition and in the body of claim 1 opens the claimed fabric to include any
amount of any manner of additional fibers and fiber-like materials, new
and/or recycled, as well as any other ingredients. See generally, Exxon
Chem. Pats., Inc. v. Lubrizol Corp., 64 F.3d 1553, 1555, 35 USPQ2d 1801,
1802 (Fed. Cir. 1995) (“The claimed composition is defined as comprising --
meaning containing at least - - five specific ingredients.”); In re Baxter,
656 F.2d 679, 686-87, 210 USPQ 795, 802-03 (CCPA 1981) (“As long as
one of the monomers in the reaction is propylene, any other monomer may
be present, because the term ‘comprises’ permits the inclusion of other steps,
elements, or materials.”).
The Examiner submits that the mechanical recycling process used by
Milding to recover synthetic fibers and fiber-like materials results in thread
elements having at least one irregular distortion, and points out that
Appellants disclose mechanical shredding in the specification at page 3,
ll. 15-21 (Answer 5-6, 7-8). Thus, the Examiner argues that the process of
Milding generates identical or substantially identical thread elements having
at least one irregular distortion as claimed (id.). On this basis, the Examiner
determines that prima facie one of ordinary skill in this art would have
modified the hydraulically entangled nonwoven fabric of Adam by using the
recycled synthetic fibers and fiber-like materials of Milding in the
reasonable expectation of obtaining useful fabrics, and that the manner in
which the fibers in the claimed fabrics are produced as specified in claim 1
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