Appeal 2006-2969
Application 10/394,075
We agree with the Examiner’s findings of fact from each of Trask,
Lack, and Keller (Answer 3-4, 5, 6-7, and 16-21; see above pp. 4 and 6-7).
We agree with the Examiner’s position that, prima facie, each of
Trask, Lack, and Keller describes to one skilled in this art the claimed textile
materials and fabrics encompassed by claims 1 and 25 as we have
interpreted these claims above. Indeed, each of Trask and Lack provides a
chemically modified surface of a fiber or a yarn and Keller provides a coated
surface of a fiber or yarn, each of the surfaces being less hydrophobic than
the particles, and facilitates the adhesion and location of hydrophobic
particles of the hydrophobic treatment directly thereon in a discontinuous
manner. Appellants do not dispute the Examiner’s finding that the amounts
of hydrophobic particles applied in the references fall within the amounts of
the discontinuous hydrophobic treatment on the claimed textile material and
fabric, and that the particles are applied discontinuously.
The Examiner’s findings that, prima facie, the textile materials and
fabrics taught by the reference are identical to the claimed textile materials
and fabrics from which it reasonably appears that the prior art products have
the same properties as the claimed products, shifts the burden to Appellants
to patentably distinguish the claimed products over those of the prior art by
effective argument or evidence. We are not convinced that Appellants have
carried this burden with respect to the property of an increased water release
rate near dryness of the claimed textile materials and fabrics. See, e.g.,
Spada, 911 F.2d at 708-09, 15 USPQ2d at 1657-58; In re Best, 562 F.2d
1252, 1254-56, 195 USPQ 430, 432-34 (CCPA 1977).
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