Appeal No. 2007-0412 Page 11
Application No. 10/195,609
1 would necessarily be different. Instead, Dr. Willbanks states that the processing
2 results are “difficult to predict” and that the examiner’s conclusions are
3 “unwarranted and purely speculative.” (Finding of Fact 21.(c)). Dr. Willbanks’
4 testimony is one of opinion testimony lacking an underlying factual basis and as
5 such we decline to credit the testimony. The claimed fabrics and the fabrics of
6 the references appear to have all the same structural characteristics, with the
7 exception of certain aesthetic properties. In this case, it was incumbent upon
8 Appellants to establish that the aesthetic properties recited in the claims are not
9 in the prior art and, in this instance, Appellants have not done so.
10 It is true that Appellants have submitted evidence purporting to show that
11 it is difficult to predict the outcome of a method of treating a fabric with steam
12 following the textile’s impingement on the support surface. The evidence also
13 shows that the method described in the Willbanks references does not treat a
14 fabric with steam following the textile’s impingement on the support surface. But
15 no evidence which we find credible has been submitted to show that treating
16 textile with steam following the textile’s impingement on the support surface is
17 the only way to obtain a fabric with the Kawabata System properties recited in
18 the claims. Absent such evidence, the submitted evidence merely shows a
19 process for making a fabric that is different (and apparently patentably distinct)
20 from the one described in the Willbanks references. Two different processes
21 may or may not produce the same product. The Willbanks references fail to
22 teach a step of treating a textile with steam following the textile’s impingement on
23 the support surface but we have no way of knowing from the evidence submitted
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