Appeal 2006-3159
Application 10/233,318
diameter size form about 0.1 to 80 microns, or the fibrous base material has
an average voids volume from 50% to about 85%. Rather, all of Appellants’
arguments are directed to whether the Examiner has established that the
normal and radial permeabilities claim feature is disclosed by Seitz.
Accordingly, Appellants only contest whether the normal and radial
permeabilities claim feature is disclosed by Seitz.
Generally, where the claimed products are identical or substantially
identical, the USPTO can require an applicant to prove that the prior art
products do not necessarily or inherently possess the characteristics of the
claimed product. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34
(CCPA 1977).
Appellants disclose in the Specification that lower permeability in the
radial and normal directions results in “the top friction modifying particle
layer hold[ing] the fluid or lubricant at the surface of the friction material.”
(Specification 19:8-10).
Seitz discloses that the fibrous backing material (i.e., fibrous base
material) is porous to allow for the friction coating (i.e., second layer) to
impregnate the fibrous backing material (i.e., fibrous base material) (Seitz,
col. 13, ll. 54-67; col. 14, ll. 1-17). Seitz further discloses that the friction
coating (i.e., second layer) and fibrous backing material (i.e., fibrous base
material) retain the lubricating fluid at the interface of the friction surface
(i.e., atop the friction coating) and the contact surface (Seitz, col. 2, ll. 37-39,
col. 5, ll. 41-50).
From Appellants’ and Seitz’s disclosures, there is a reasonable basis
in fact that Seitz’s friction coating (i.e., second layer) has “a lower
permeability in the radial direction and a lower permeability in the normal
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