Appeal 2007-0876
Application 10/057,346
with the Examiner that McAtee suggests using thin one ply paper layers in
the personal cleansing articles.
Appellant argues that claim 4 “is distinguishable over the McAtee
patent because there is no teaching or suggestion in the McAtee patent of the
antibacterial member having a dry antibacterial member” (Br. 9). Appellant
makes the same argument with respect to claim 10 (id. at 11).
We do not agree. As discussed supra, McAtee states that “cosmetic
biocides” are useful as optional ingredients (id. at col. 30, ll. 11-27), and that
“[t]he surfactant . . . and any optional ingredients can be added onto . . .
either layer . . . by any means known to those skilled in the art: for example
by spraying, laser printing, splashing, dipping, soaking, or coating” (id. at
col. 31, ll. 12-17). McAtee then discloses that the “the resulting treated
substrate is then preferably dried so that it is substantially free of water” (id.
at col. 31, ll. 19-20). We therefore agree with the Examiner that McAtee
suggests using a dry antibacterial member in the personal cleansing articles.
While Claim 10 recites that the “antibacterial member is activated by
moisture from the body,” the claim is directed to an article, and not a method
in which the article is actually contacted with bodily moisture. Thus, the
requirement for activation by body moisture is in the nature of an intended
use, and any article capable of performing the intended use will meet that
limitation. See In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429,
1431 (Fed. Cir. 1997).
As conceded by Appellant, McAtee discloses “a soap and lathering
agent that is activated by wetting the article and rubbing the article against
itself” (Br. 11). Thus, McAtee’s article can be activated by moisture from
8
Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: September 9, 2013