Appeal 2007-0910
Application 10/108,807
as recited in claims 18 and 28, (Compare the Answer in its entirety with the
Brief in its entirety.) Nor is there any dispute that the prior art references
relied upon by the Examiner would have suggested laminating the supun-
bonded nonwoven fabric wipe as required by claim 28. (Compare the
Answer in its entirety with the Brief in its entirety.) The Appellant only
argues that the prior art references do not teach or would have suggested a
non-woven fabric having the clamed level of ion impurities. (See the Brief
in its entirety.)
The dispositive question is, therefore, whether one of ordinary skill in
the art would have been led to form a spun-bonded nonwoven fabric wipe
having the claimed level of ion impurities within the meaning of 35 U.S.C.
§ 103(a). On this record, we answer this question in the affirmative.
As is apparent from the record, Jeffers teaches that its nonwoven
fabric is subject to a deionized water wash. The Specification, at page 1,
discloses that the claimed ion impurity level is achieved by “exposing the
fabric to a deionized water wash…” As stated in In re Best, 562 F.2d 1252,
1255, 195 USPQ 430, 433-34 (CCPA 1977):
Where . . . the claimed and prior art products are identical or
substantially identical, or are produced by identical or
substantially identical processes, the PTO can require an
applicant to prove that the prior art products do not necessarily
or inherently possess the characteristics of his claimed product.
. . . Whether the rejection is based on "inherency" under 35
U.S.C. § 102, on ‘prima facie obviousness’ under 35 U.S.C. §
103, jointly or alternatively, the burden of proof is the same,
and its fairness is evidenced by the PTO's inability to
manufacture products or to obtain and compare prior art
products. [Citation omitted; emphasis added.]
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