Appeal 2006-2352
Application 10/065,436
However, the Examiner acknowledges that Hirakawa “does not
explicitly teach … a minimum length sufficient to support a meniscus of
water in the coaxial opening and a maximum length at which the liquid will
entirely fill with a liquid as required by claim 72….” (Answer 6).
Furthermore, we note that the Examiner has not identified, nor can we find,
where in Hirakawa an empty core fiber is described as including a filament
with a coaxial opening entirely therethrough as recited as a limitation of
independent claim 72. Nor has the Examiner pointed out how Hirakawa
fairly implies a description or suggestion of a hollow PET filament with
sufficient openings to substantially fill with liquid as required by claim 2.
We recognize that the Examiner has pointed out certain
commonalities in size that exist between the generic description of polyester
fibers used in Hirakawa and the size of the fibers specified in Appellants’
Specification and several dependent claims (Answer 6 and 13). However,
the Examiner has not fairly articulated, on this record, how those general
commonalities standing alone are sufficient to warrant the factual inference
the Examiner desires. In particular, the Examiner has not laid sufficient
factual groundwork to show how the briefly described empty core fiber
embodiment of Hirakawa would necessarily be understood by one of
ordinary skill in the art as describing a hollow PET filament formed with
sufficient openings therein to substantially fill with a liquid (claim 2), or that
the empty core fibers of Hirakawa would necessarily have an axial opening
extending entirely therethrough (claim 72). Nor has the Examiner furnished
a reasonable basis, on this record, as to why one of ordinary skill in the art
would have been led to provide the empty core fibers of Hirakawa with
sufficient openings to substantially fill with a liquid (claim 2). Moreover,
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