Appeal 2006-2949
Application 10/012,768
patentable their method which is clearly obvious in view of [the reference].
[Citation omitted.]”); cf. In re Spada, 911 F.2d 705, 708-09, 15 USPQ2d
1655, 1657-58 (Fed. Cir. 1990) (“The Board held that the compositions
claimed by Spada ‘appear to be identical’ to those described by Smith.
While Spada criticizes the usage of the word ‘appear,’ we think that it was
reasonable for the PTO to infer that the polymerization by both Smith and
Spada of identical monomers, employing the same or similar polymerization
techniques, would produce polymers having the identical composition.”).
We are of the opinion that Appellants have not carried their burden.
The issue here is not whether the references would have taught the hydraulic
fabric shredding process disclosed by Appellants, but whether the
hydraulically entangled nonwoven fabric as claimed is identical or
substantially identical to the hydraulically entangled nonwoven fabric that
would have been reasonably suggested to one of ordinary skill in this art by
the combined teachings of Adam and Milding and indeed, by the teachings
of Milding alone. See In re Wertheim, 541 F.2d 257, 271, 191 USPQ 90,
103-04 (CCPA 1976) (“These claims are cast in product-by-process form.
Although appellants argue, successfully we have found, that the [reference]
disclosure does not suggest . . . appellants’ process, the patentability of the
products defined by the claims, rather than the processes for making them, is
what we must gauge in light of the prior art.”). The fact that the mechanical
shredding process disclosed by Milding can result in “flocks” does not
distinguish the claimed product which can include such “fiber-like
materials” in view of this claim term as well as the claim term “comprising”
as we interpreted claim 1 above. Finally, the contention that the claimed
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