Appeal 2006-2969
Application 10/394,075
our determination above that the claimed hydrophobic surface treatment and
hydrophobic particles include additives that can coat or chemically modify
the “surface” of the fibers and yarns.
The mechanism(s) which facilitate adherence of the hydrophobic
particles directly to the “surface” so as to be located directly thereon is/are
not described in the Specification. The Specification examples merely
describe the application of PTFE particles via aqueous dispersion to surfaces
of fibers and yarns in various textile materials and fabrics, several of which
are chemically modified or coated, including, in Example 3, the dyed red
polyester shirt “treated previously with PTFE.” The submitted micrographs
of “fibers of the invention treated with a low level of an aqueous dispersion
of PTFE particles” along with the reported observation “[t]he particles are
and fabrics during cleaning processes or normal wear-and-tear such that the
presence of the particles becomes discontinuous on a surface of fibers and
yarns in these prior art materials, and the washing of the prior art materials
with untreated textile materials and fabrics results in the transfer of the
particles to the untreated materials such that the surface is discontinuously
treated therewith, claims 1 and 25 read on such prior art materials. In this
respect, Appellants have done no more than identify the property of an
increase in the water release rate near dryness of such prior art textile
materials and fabrics, which discovery of a new benefit of the prior art
materials does not render the same again patentable simply because those
using the materials may not have appreciated the property. See, e.g., Spada,
911 F.2d at 707, 15 USPQ2d at 1657, and cases cited therein; W.L. Gore &
Assocs. v. Garlock, Inc., 721 F.2d 1540, 1548, 220 USPQ 303, 309 (Fed.
Cir. 1983) (“[I]t is . . . irrelevant that those using the invention may not have
appreciated the results. . . . Were that alone enough to prevent anticipation, it
would be possible to obtain a patent for an old and unchanged process.”
(citations omitted)). We leave it to the Examiner to consider this matter
upon any further prosecution of the appealed claims subsequent to the
disposition of this appeal.
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