Appeal 2007-2039
Application 10/619,656
in this teaching is that the tissue product, like the Appellants’ tissue product,
is conventionally embossed. Compare Luu, col. 3, ll. 33-37, with the
Appellants’ Specification 6-8. The lotionized tissue product taught by Luu,
like the Appellants’ lotionized tissue product, is obtained by treating or
applying a lotion to either the embossed or unembossed substrate “according
to conventional application methods known to those skilled in the art.”
Compare Luu, col. 3, ll. 33-37 and col. 4, ll. 42-46, with the Appellants’
Specification 8-9. The lotion used in Luu, like that of the Appellants, “is
transferable to the skin” and includes an emollient and a retention/release
agent as base ingredients. Compare Luu, col. 1, l. 56 to col. 2, l. 1 and col.
6, ll. 29-42, with the Appellants’ Specification 8.
Given the virtual or substantial identity between the claimed and prior
art tissue products and processes of making the same, we concur with the
Examiner that the burden is properly shifted to the Appellants to prove that
Luu’s tissue product does not possess the claimed functional property. This
is especially true in this case since one of ordinary skill in the art would have
had a reasonable expectation of transferring a significantly higher quantity
of the lotion from Luu’s tissue product upon dynamic contact (providing
squeezing or pressurizing effect) than upon stationary contact.
On this record, the Appellants have not demonstrated that Luu’s tissue
product does not possess the claimed functional property. In fact, the
Appellants’ own data at page 9 of the Specification indicate that Luu’s tissue
product is more likely than not to have the claimed functional property.
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