Appeal No. 2007-0281
Application No. 10/444,073
fibrillated acrylic fibers (first page) and describes some CFF® fibers as
having a CSF value of less than 300 (second page). The specification states
that “as used [t]herein and in the accompanying claims,” (page 4), fibrillated
fibers are defined as those having a CSF of less than about 300 mL (page 5).
Appellant argues that neither the undated Internet article nor the
specification’s definition can properly be relied on. (Br. 8.) We agree with
Appellant that the specification’s definition of fibrillated fibers cannot,
without more, be relied on as evidence that all fibrillated fibers will have a
CSF value of less than 300. But the more fundamental problem with the
Examiner’s reasoning is that the evidence relied on relates to fibrillated
fibers, while Heagle’s disclosure relates to fibrillated particles. Heagle
expressly states that the fibrillated particles used in its medium are not
fibers:
[T]hose fibrillated particles are three-dimensional particles, and
the depth is approximately equal to the width. These particles
are not fibers and cannot be spun into a yarn, i.e are not textile
fibers, e.g. of staple length.
(Col. 12, ll. 57-61.) The Examiner has provided inadequate evidence on
which to conclude that the fibrillated particles of Heagle would inherently
possess the CSF values described in the specification and in the Internet
article for fibrillated fibers.
In addition, claim 1 requires “fibrillated . . . synthetic polymeric staple
fibers.” Neither Heagle nor Baumgardner teaches fibrillated fibers. The
specification states that CFF® fibers, which are discussed in the Internet
article, were commercially available at the time of filing (page 6), but the
Examiner has provided no basis on which to conclude that those skilled in
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