Appeal 2007-0876
Application 10/057,346
Based on these teachings, the Examiner concludes that “[i]t would
have been obvious to one of ordinary skill in the art to add a bacterial agent
from the options given in the reference in order to enhance the[] hygiene of
the tissue” (id.).
“In proceedings before the Patent and Trademark Office, the
Examiner bears the burden of establishing a prima facie case of obviousness
based upon the prior art.” In re Fritch, 972 F.2d 1260, 1265, 23 USPQ2d
1780, 1783 (Fed. Cir. 1992). Because McAtee suggests that it would have
been desirable to make articles having the claimed features, we agree that
the Examiner has established a prima facie case of obviousness.
McAtee discloses “disposable, personal cleansing articles useful for
cleansing the skin or hair. . . . The article comprises a water insoluble
substrate having a cleansing surface that contains apertures of a certain size
and frequency, and a lathering surfactant releasably associated with the
substrate” (McAtee, abstract). The insoluble substrate may be made of
“commercially available paper layers” (id. at col. 5, l. 67 through
col. 6, l. 1).
In Figure 5A, McAtee discloses an embodiment having two coupled
layers, in which “the wiping article is generally flat prior to wetting” (id. at
col. 9, ll. 29-30). We agree with the Examiner that McAtee’s two-layered
generally flat article meets claim 7’s requirement of two planar shaped
members.
McAtee also discloses that “two or more plies or layers [may be] used
to form the water-insoluble substrate” (id. at col. 6, ll. 54-56) (emphasis
added). We agree with the Examiner that one of ordinary skill would have
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