Appeal No. 2007-0517
Application No. 10/768,647
portions of absorbent material joined by the splicing material. (Appeal Brief,
pages 14-15). In particular, Applicant states that there is no factual basis on which
it can be said that Roslund’s cement strip necessarily results in the claimed fluid
permeability. (Id. at 15).
Applicant’s contention that Roslund will not achieve the claimed at least
about 25% fluid permeability runs contrary to Roslund’s description of a seam that
largely maintains the porosity and absorbency of its absorbent materials to be
spliced. As recognized by the Federal Circuit, an Applicant’s mere argument
challenging the USPTO to prove the truth of the statements made in a prior art
patent is insufficient to rebut a prima facie case of anticipation as the USPTO is
not equipped to conduct testing to verify the statements made in the prior art.
King at 1327, 231 USPQ at 139. We find that the Examiner did not error in
rejecting Applicant’s claim 12 as anticipated.
14
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