Appeal 2007-0486
Application 10/441,484
product. In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657-58 (Fed.
Cir. 1990). Here, Appellant’s arguments in the Brief and the Reply Brief do
not establish that the fabric of Eng would not be capable of being hand
maneuvered and grasped with the fingers and a user’s hand for use as a
cleaning towel or otherwise established reversible error in the Examiner’s
anticipation rejection of claims 11 and 12.
Similarly, the Examiner has reasonably found that Hoffman describes
a skin care/cleaning device including a layer of body material that includes
protrusive ridges (folds) (15, Fig. 7) formed by sewing and delineating a
plurality of separate panels. Hoffman further describes the use of a fabric or
denim material, among others as being useful in making the mitt shaped
device. Hence, like the fabric article of Eng, the Hoffman device includes a
body of material with ridges that reasonably corresponds with the claimed
towel such that it is appropriate to shift the burden to Appellant to establish
that Hoffman’s device would not possess characteristics or properties, such
as maneuverability, and hand/finger grasping capability corresponding to
that claimed by Appellant. Appellant’s arguments in the Briefs do not
establish that the Hoffman structure would not have been capable of use as a
cleaning towel. Moreover, we note that appealed claims 11 and 12 employ
the open transitional term “comprising”, which does not exclude the
presence of other layers of material being present in the towel besides the
recited single layer of body material. Thus, Appellant’s argument with
respect to the lining layer of Hoffman are unpersuasive because the
provision of a lining layer such as the lining (3) of Hoffman is not excluded
by the appealed claims. Moreover, the lining of Hoffman is readily
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