Appeal 2006-2949
Application 10/012,768
fabrics have greater utility than fabrics entirely from new fibers does not
constitute an argument with respect to the properties of the claimed fabric
vis-à-vis the teachings of the applied prior art. Cf. In re Hoch, 428 F.2d
1341, 1343-44, 166 USPQ 406, 409 (CCPA 1970) (evidence must provide
an actual comparison of the properties of the claimed compositions with
compositions of the reference).
Accordingly, based on our consideration of the totality of the record
before us, we have weighed the evidence of obviousness found in the
combined teachings of Adam and Milding with Appellants’ countervailing
evidence of and argument for nonobviousness and conclude that the claimed
invention encompassed by appealed claims 1 through 17 would have been
obvious as a matter of law under 35 U.S.C. § 103(a).
We summarily affirm the provisional ground of rejection under the
judicially created doctrine of obviousness-type double patenting because
Appellants have stated that “[a]n appropriate terminal disclaimer will be
provided, if necessary, upon the allowance of claims in the present
application” (Br. 12).
The Examiner’s decision is affirmed.
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