Ex Parte Ward et al

Patent Trial and Appeal Board

Dec 28, 2018

14443165 (P.T.A.B. Dec. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/443,165 05/15/2015
23474 7590 01/02/2019
FLYNN THIEL, P.C.
2026 RAMBLING ROAD
KALAMAZOO, MI 49008-1631
FIRST NAMED INVENTOR
Bennett Clayton Ward
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
3700.P0542US 6144
EXAMINER
POWERS, LAURA C
ART UNIT PAPER NUMBER
1785
NOTIFICATION DATE DELIVERY MODE
01/02/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
DOCKET@FL YNNTHIEL.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BENNETT CLAYTON WARD,
JIAN XIANG, JENNY GATER,
and PHILIP JOHN ALLEN
Appeal2018-002258
Application 14/443,165
Technology Center 1700
Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) the final rejections of
claims 1-3, 7-12, 14, 15, and 17. Claims 29-34, the other claims pending in
this application, stand withdrawn from consideration by the Examiner. 2 We
have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b ).
1 Appellants identify the real party in interest as Essentra Packaging &
Security Limited and Essentra Porous Technologies Corp. (Appeal Br. 1 ).
2 Appellants request rejoinder of these claims (Appeal Br. 22). However, the
withdrawal of a claim from consideration pursuant to a restriction or election
requirement is a petitionable matter not subject to review by the Board. See
In re Berger, 279 F.3d 975, 984--85 (Fed. Cir. 2002) (petitionable issues are
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Application 14/443,165
We AFFIRM.
Appellants' invention is directed to a self-adhesive moisture control
label for product packaging, which is said to control the humidity of the
atmosphere within the packaging (Spec. ,r 2). The self-adhesive moisture
control label may humidify the atmosphere within tobacco product
packaging to prevent the tobacco from drying out. (Id.).
Claims 1, 2, 7, and 17 are illustrative (italics added):
1. A self-adhesive moisture control label for adhering to an
inside of product packaging, comprising:
a water absorbent layer capable of absorbing water; an
an adhesive layer provided such that the label can be
adhered to the packaging;
wherein the moisture control label is configured to
control the humidity of the atmosphere within the packaging;
wherein an opacity of the water absorbent layer varies as
a function of an amount of water retained by the water
absorbent layer such that in use, a graphical indicium disposed
below the water absorbent layer becomes less visible as the
water absorbent layer becomes drier, and becomes more visible
as the water absorbent layer becomes wetter, and wherein a
change in visibility of the graphical indicium between less
visible and more visible is reversible.
2. A label according to claim 1, wherein water absorbed by the
water absorbent layer can evaporate from the water absorbent layer
so as to control the humidity of the atmosphere within the packaging.
7. A label according to claim 1, wherein the water absorbent layer
comprises a sponge material.
1 7. A label according to claim 1, wherein in a dry state the water
absorbent layer has a first opacity and wherein in a saturated state
not subject to review by the Board). Accordingly, we cannot act on this
request.
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the water absorbent layer has a second opacity which is lower than
the first opacity.
Appellants appeal the following rejections:
1. Claims 1-3, 7-12, 14, 15, and 17 are rejected under 35 U.S.C. § 112,
first paragraph, as failing to comply with the enablement requirement.
2. Claims 1-3, 7-12, 14, 15, and 17 are rejected under 35 U.S.C. § 112,
second paragraph, as indefinite for failing to point out and particularly
claim the subject matter applicant regards as the invention.
3. Claims 1, 2, 3, 15, and 17 are rejected under 35 U.S.C. § I02(b) as
anticipated by or, in the alternative, under 35 U.S.C. § I03(a) as
obvious over Birkholz et al. (WO 03/031531 Al, published April 17,
2003, "Birkholz").
4. Claims 1, 2, 3, 8, 12, and 17 are rejected under 35 U.S.C. § I02(b) as
anticipated by or, in the alternative, under 35 U.S.C. § I03(a) as
obvious over Barre (US 6,601,875 B2, published Aug. 5, 2003).
5. Claims 1, 2, 3, 15, and 17 are rejected under 35 U.S.C. § I02(b) as
anticipated by or, in the alternative, under 35 U.S.C. § I03(a) as
obvious over Mallol et al. (WO 2010/089702 Al, published Aug. 12,
2010 referencing the English language equivalent US 8,632,101 B2,
issued Jan. 21, 2014, "Mallol").
6. Claim 7 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Birkholz in view of Thiebaut (US 2005/0214495 Al, published Sept.
29, 2005).
7. Claim 7 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Barre in view of Thiebaut.
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8. Claim 7 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Mallol in view of Thiebaut.
9. Claims 9, 10, and 11 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Barre in view of Cullen et al. (WO 94/25263 Al,
published Nov. 11, 1994, "Cullen").
10. Claims 14 and 15 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Barre in view of Birkholz.
Regarding rejection (1), Appellants argue claims 1, 3, 7-12, 14, 15,
and 17 as a group and claim 2 separately (Appeal Br. 4---6). Regarding
rejection (2), Appellants argue claims 1, 3, 8-12, 14, 15, and 17 as a group
and each of claims 2 and 7 separately. (Id. at 6-11 ). Regarding rejections
(3) and (5), Appellants argue claims 1, 3, and 15 as a group and each of
claims 2 and 17 separately. (Id. at 11-15; 18-20). Regarding rejection (4)
Appellants argue claims 1, 3, 8, and 12 as a group and each of claims 2 and
17 separately. (Id. at 15-17). Regarding rejections (6}-(10), Appellants rely
on arguments made for reversal of the obviousness rejections to claim 1.
(Id. at 21-22).
We select claim 1 as representative of each of their respective argued
claims grouping for rejections (1}-(5). We further select claim 1 as
representative for rejections (6}-(10).
FINDINGS OF FACT & ANALYSIS
Rejection (1 ): 35 U.S.C. § 112, ,r 1, Enablement
The Examiner concludes that claims 1-3, 7-12, 14, 15, and 17 are not
enabled by the written description because the Specification lacks sufficient
guidance with respect to how humidity is controlled in the limitations
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reciting "wherein the moisture control label is configured to control the
humidity of the atmosphere within the packaging" and "wherein water
absorbed by the water absorbent layer can evaporate from the water
absorbent layer so as to control the humidity of the atmosphere within the
packaging." (Ans. 3-5).
In particular, the Examiner finds that the Specification provides
insufficient guidance because: (i) no size dimensions are provided for the
label or the container (id. at 4), (ii) "there is no data or examples showing
that the physical properties [of the label] listed in the [S]pecification are
capable of 'controlling the humidity of the atmosphere within the packaging'
of all the possible items and packages that they come in" (id. at 5), (iii) and
the "[S]pecification does not provide any examples as to what is considered
a hydrophilic material, a hydro gel or a sponge in the context of the claimed
invention." (Id.).
Claims 1, 3, 7-12, 14, 15, and 17
Appellants argue that the Specification provides sufficient disclosure
for one of skill in the art to make and use the claimed label without undue
experimentation because the Specification describes the claimed label's
features and the nature of specific materials for the water absorbent layer
(Appeal Br. 5).
The Specification, when filed, must enable one skilled in the
particular art to use the invention without undue experimentation. In re
Wands, 858 F.2d 731,737 (Fed. Cir.1988). In this case, the Examiner has
not established that the disclosure in Appellants' Specification would
necessitate undue experimentation to enable one skilled in the art to practice
the claimed humidity control.
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We conclude that Appellants' Specification enables one of ordinary
skill in the art to make and use the claimed invention. Paragraph 33 of the
Specification describes each component of the claimed self-adhesive
moisture control label, including the water absorbent layer. The
Specification, at paragraphs 36 and 39, further describes water absorbent
layer materials, dimensions, and densities, along with the layer's capability
for absorbing specific water volumes. The Specification discloses that water
retained by the water absorbent layer can evaporate from the layer "to
provide moisture to the atmosphere within the product packaging," thereby
humidifying this atmosphere. (Id. at ,r 33) We, thus, agree with Appellants
that "water evaporation controls humidity." (Appeal Br. 6). Based on these
teachings, we are not persuaded that one of skill in the art of manufacturing
tobacco product packaging would require undue experimentation to
implement successfully the use of hydrophilic material, a hydrogel, or a
sponge in the context of the claimed invention. Accordingly, the
Specification enables configuring a moisture control label to control the
humidity of the atmosphere within product packaging.
On this record and for the above reasons, we reverse the Examiner's
§ 112, first paragraph, rejection of claims 1-3, 7-12, 14, 15, and 17 for lack
of enablement.
Claim 2
Appellants persuasively argue that, based on the Specification, "it
would not take undue experimentation for one skilled in the art to ... make
and use a water absorbent layer such that 'water absorbed by the water
absorbent layer can evaporate"' as required by claim 2 (Appeal Br. 6). For
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the reasons set forth above, we agree with Appellants that "water
evaporation controls humidity." (Id.).
Therefore, we reverse the Examiner's § 112, first paragraph, rejection
of claim 2 for lack of enablement.
Rejection (2): 35 U.S.C. § 112, ,r 2, Indefiniteness
Regarding the claimed "graphical indicium" limitations
Claims 1-3, 7-12, 14, 15, and 17
The Examiner determines that the limitations "such that in use, a
graphical indicium disposed below the water absorbent layer becomes less
visible as the water absorbent layer becomes drier, and becomes more
visible as the water absorbent layer becomes wetter" and "wherein a change
in visibility of the graphical indicium between less visible and more visible
is reversible," each recited in claim 1 ( emphasis added), are indefinite.
(Ans. 6). The Examiner concludes that it is unclear, based upon the claimed
structure, where the graphical indicium is located. (Id.). In particular, the
Examiner determines that it is unclear whether "the graphical indicium is
between the adhesive and the water absorbent layer, or if it is on a
completely different layer that is not yet claimed." (Id.).
Appellants respond by arguing that claim 1 recites the location of the
graphical indicium as disposed below the absorbent layer and that the
Specification describes other possible locations, such as on a base layer or
the product packaging (Appeal Br. 9; see Spec. ,r 18). Appellants further
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argue "that the graphical indicimn is clearly positively claimed." (Reply Br.
1 ). 3
We agree with the Examiner's determination that the limitations
reciting the claimed "graphical indicium" in claim 1 are indefinite. (Ans. 6,
23). The subject matter of claim 1 is drawn to a self-adhesive moisture
control label comprising two components: (1) a water absorbent layer and
(2) an adhesive layer. As the Examiner determines, it is "not clear what the
final structure of the claimed label is, and if the graphical indicium is part of
a structural feature of the label itself or is simply a feature of the packaging
the label is applied to at a later point in time." (Id. at 23). Thus, we do not
construe the claimed "graphical indicium" as encompassed by the structure
recited in claim 1.
Accordingly, we affirm the Examiner's rejection of claim 1 and its
dependent claims 2, 3, 7-12, 14, 15, and 17 under 35 U.S.C. § 112, second
paragraph, based on the disputed "graphical indicium" limitations of
independent claim 1 for the reasons presented above and given by the
Examiner.
Regarding the claimed "control the humidity" limitations
Claim 1
The Examiner determines that the limitation "wherein the moisture
control label is configured to control the humidity of the atmosphere within
the packaging" recited in claim 1 (emphasis added) is indefinite. (Ans. 6).
3 Appellants argue that the Examiner raised the issue for the first time in the
Answer as to the whether the graphical indicium is part of the claimed label.
(Reply Br. 1 ). The Examiner, however, raised this issue in the Final Office
Action. (Final Act. 6).
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The Examiner concludes that it is unclear what structure is claimed by this
limitation. (Id. at 7). As a further basis for determining the indefiniteness of
claim 1, the Examiner relies on findings and assertions supporting the
determination that claim 1 is not enabled by the written description. (Id.).
As set forth above in our analysis and conclusion that claim 1 is
enabled by the written description, the Specification discloses that water
retained by the water absorbent layer can evaporate from the layer "to
provide moisture to the atmosphere within the product packaging." (Spec.
,r 33). Appellants' arguments are persuasive that such an evaporation from
the water absorbent layer would control the humidity therein. We are,
therefore, not convinced that claim 1 is not clear as to what structure is
claimed by the limitation requiring humidity control.
Accordingly, we reverse the Examiner's rejection of claim 1 and its
dependent claims 2, 3, 7-12, 14, 15, and 17 under 35 U.S.C. § 112, second
paragraph, based on the disputed limitation "wherein the moisture control
label is configured to control the humidity of the atmosphere within the
packaging" of independent claim 1 ( emphasis added) for the reasons
presented above.
Claim 2
The Examiner determines that the limitation "wherein water absorbed
by the water absorbent layer can evaporate from the water absorbent layer so
as to control the humidity of the atmosphere within the packaging" as recited
in claim 2 (emphasis added) is indefinite. (Ans. 7). The Examiner's basis
for determining that this limitation is unclear are identical to the Examiner's
grounds for determining that the limitation requiring humidity control in
claim 1 is not clear.
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Having determined that the limitation requiring humidity control in
claim 1 is clear, we reverse the Examiner's rejection of claim 2 under 35
U.S.C. § 112, second paragraph, based on the disputed limitation requiring
humidity control in claim 2 for the reasons presented above.
Regarding the claimed "sponge material" limitation
Claim 7
The Examiner determines that the limitation "wherein the water
absorbent layer comprises a sponge material" as recited in claim 7
(emphasis added) is indefinite. (Id.). According to the Examiner, "[i]t is not
clear what 'sponge material' means with respect to the materials comprising
the water absorbent layer, and the [S]pecification does not provide any
examples of what a sponge material is within the context of the claimed
invention." (Id.).
We, however, agree with Appellants that "[o]ne skilled in the art
would know that a sponge material is a piece of a soft, light, porous
substance," and that such material is capable of evaporating water. (Appeal
Br. 11 ). Accordingly, we reverse the Examiner's rejection of claim 7 under
35 U.S.C. § 112, second paragraph, based on the disputed limitation
"wherein the water absorbent layer comprises a sponge material" of claim 7
( emphasis added) for the reasons presented above.
Rejection (3): 35 U.S.C. § 102(b) or 35 U.S.C. § 103(a)
Claims 1, 3, and 15
The Examiner finds that Birkholz teaches all of the elements of claim
1, except that Birkholz is silent with respect to the functions or properties of
intended use reciting
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"wherein the moisture control label is configured to control the
humidity of the atmosphere within the packaging; wherein an
opacity of the water absorbent layer varies as a function of an
amount of water retained by the water absorbent layer such that
in use, a graphical indicium disposed below the water absorbent
layer becomes less visible as the water absorbent layer becomes
drier, and becomes more visible as the water absorbent layer
becomes wetter, and wherein a change in visibility of the
graphical indicium between less visible and more visible is
reversible[,"] however, Birkholz ... teaches the same materials
for the water absorbent substrate ... as [Appellants] teach[] for
the water absorbent layer ... , and therefore, it is reasonably
expected that [Birkholz's] water absorbent substrate ... would
be capable of performing the recited function.
(Ans. 8-9 (citing Birkholz 3:15--4:25); see also Spec. ,r 9).
Appellants argue that Birkholz does not disclose the limitation recited
in claim 1 requiring that the graphical indicium becomes more visible as the
water absorbent layer becomes wetter or less visible as this layer becomes
drier or that the change in visibility is reversible. (Appeal Br. 12).
Appellants further argue that Birkholz fails to teach or suggest use of the
label in a high humidity environment wherein the label is "configured to
control the humidity of the atmosphere within the packaging" as recited in
claim 1. (Id. at 13). Appellants' arguments are not persuasive.
Appellants do not challenge the Examiner's findings that Birkholz
"teaches the same materials for the water absorbent substrate ... as
[]Appellant[ s] teach[] for the water absorbent layer ... , and therefore, it is
reasonably expected that the water absorbent substrate of Birkholz ... would
be capable of performing the recited function." (Ans. 25 (citing Birkholz
3: 15--4:25); see also Spec. ,r 9).
Thus, Appellants have the burden of showing that Birkholz's water
absorbent substrate would not be capable of performing the claimed function
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or inherently have the claimed property. On this record, Appellants have not
met their burden and, therefore, a prima facie case of anticipation, or in the
alternative, of obviousness has been established. See also In re Best, 562
F.2d 1252, 1255 (CCPA 1977) (explaining that "[w]here ... 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.").
Appellants argue that the presence of the transparent layer in
Birkholz's label would have prevented the label from functioning as a
moisture control label. (Appeal Br. 13-14).
We are not persuaded by Appellants' argument. As the Examiner
found, the transparent layer in Birkholz's label "does not completely enclose
the fluid transport substrate ... , wherein either the edges are exposed ... or
a central region is exposed through a hole in the transparent layer." (Ans. 26
(citing Birkholz Figs. 1 and 2)).
Claims 2 and 17
Appellants' separate arguments for reversal of dependent claims 2 and
17 do not dispute that Birkholz teaches the same materials for the water
absorbent substrate as Appellants teach for the claimed water absorbent
layer. Furthermore, Appellants have not met their burden in showing that
Birkholz's water absorbent substrate would not be capable of performing the
claimed function or inherently have the claimed properties required by
claims 2 and 17. See Best, 562 F.2d at 1255.
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For the reasons set forth above regarding claim 1, Appellants'
arguments urging reversal of the anticipation, or in the alternative, the
obviousness rejection to claims 2 and 17 are similarly unpersuasive.
On this record, we affirm the Examiner's rejection of claims 1, 2, 3,
15, and 17 under 35 U.S.C. § 102(b) as anticipated by or, in the alternative,
under 35 U.S.C. § 103(a) as obvious over Birkholz for the reasons presented
above and given by the Examiner.
Rejection (4): 35 U.S.C. § 102(b) or 35 U.S.C. § 103(a)
Claims 1, 3, 8, and 12
The Examiner finds that Barre teaches all of the elements of claim 1,
except that Barre is silent with respect to the functions or properties of
intended use reciting
"wherein the moisture control label is configured to control the
humidity of the atmosphere within the packaging; wherein an
opacity of the water absorbent layer varies as a function of an
amount of water retained by the water absorbent layer such that
in use, a graphical indicium disposed below the water absorbent
layer becomes less visible as the water absorbent layer becomes
drier, and becomes more visible as the water absorbent layer
becomes wetter, and wherein a change in visibility of the
graphical indicium between less visible and more visible is
reversible[,"] however, Barre teaches the same materials for the
non-woven film ... and the substrate ... as [Appellants]
teach[] for the water absorbent layer ... and base layer ... , and
therefore, it is reasonably expected that [Barre's] non-woven
film ... and the substrate ... would be capable of performing
the recited function.
(Ans. 11 (citing Barre 2:28-36; 2:10-27); see also Spec. ,r,r 9, 16).
Appellants argue that Barre does not disclose a moisture control label
as defined in claim 1 and that there is no indication that Barre's non-woven
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film 8 is fibrous or is capable of absorbing water. (Appeal Br. 16).
Appellants further argue that Barre teaches a thin film of material and thus
the non-woven layer would not be capable of absorbing water. (Id.).
Appellants contend that Barre does not teach the requisite label that includes
a water absorbent layer having an opacity which varies as a function of the
amount of water retained by the water absorbent layer such that a graphical
indicium disposed below the water absorbent layer becomes less visible as
the water absorbent layer becomes drier and more visible as the water
absorbent layer becomes wetter. (Id.). Appellants further contend that Barre
does not teach a label that is configured to control the humidity of the
atmosphere within a package. (Id.).
Appellants' arguments are not persuasive because they do not rebut
the Examiner's findings that "Barre teaches the same materials for the non-
woven film ... and the substrate ... as ... Appellant[ s] teach[] for the water
absorbent layer ... and base layer ... , and therefore, it is reasonably
expected that [Barre's] non-woven film ... and the substrate ... would be
capable of performing the recited function. (Ans. 28 (citing Barre 2:28-36;
2:10-27); see also Spec. ,r,r 9, 16). Moreover, Appellants' focus on the
thinness of Barre's film as a distinction from the instant invention is
misplaced because Appellants argue limitations not recited in claim 1.
Thus, Appellants have the burden of showing that Barre's non-woven
film would not be capable of performing the claimed function or inherently
have the claimed property. On this record, Appellants have not met their
burden and, therefore, a prima facie case of anticipation, or in the
alternative, of obviousness has been established. See Best, 562 F.2d at 1255.
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Claims 2 and 17
Appellants' separate arguments for reversal of dependent claims 2 and
17 do not dispute that Barre teaches the same materials for the non-woven
film as Appellants teach for the claimed water absorbent layer. Furthermore,
Appellants have not met their burden in showing that Barre's non-woven
film would not be capable of performing the claimed function or inherently
have the claimed properties required by claims 2 and 17. See Best, 562 F .2d
at 1255.
For the reasons set forth above regarding claim 1, Appellants'
arguments urging reversal of the anticipation, or in the alternative, the
obviousness rejection to claims 2 and 17 are similarly unpersuasive.
On this record, we affirm the Examiner's rejection of claims 1, 2, 3, 8,
12, and 17 under 35 U.S.C. § 102(b) as anticipated by or, in the alternative,
under 35 U.S.C. § 103(a) as obvious over Barre for the reasons presented
above and given by the Examiner.
Rejection (5): 35 U.S.C. § 102(b) or 35 U.S.C. § 103(a)
Claims 1, 3, and 15
The Examiner finds that Mallol teaches all of the elements of claim 1,
except that Mallol does not explicitly disclose the functions or properties of
intended use reciting
"wherein the moisture control label is configured to control the
humidity of the atmosphere within the packaging; wherein an
opacity of the water absorbent layer varies as a function of an
amount of water retained by the water absorbent layer such that
in use, a graphical indicium disposed below the water absorbent
layer becomes less visible as the water absorbent layer becomes
drier, and becomes more visible as the water absorbent layer
becomes wetter, and wherein a change in visibility of the
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graphical indicimn between less visible and more visible is
reversible[,"] however, Mallol ... teaches the same materials
for the fibrous substrate layer as [Appellants] disclose[] for the
water absorbent layer, and therefore, it is reasonably expected
that the fibrous substrate layer of Mallol ... would be capable
of performing the recited function.
(Ans. 13; see Mallol 1:65-2:15; see also Spec. ,r 9).
Appellants argue that Mallol does not teach a water absorbent layer
having an opacity and visibility of a graphical indicium disposed below the
water absorbent layer that "varies as a function of [the] amount of water
retained by the water absorbent layer" as presently recited in claim 1.
(Appeal Br. 19). Appellants further argue that Mallol discloses materials
used for the fibrous layer that are based on plant fibers, such as cellulose
fibers, cotton fibers or synthetic fibers, which are distinguished from the
Specification's disclosure of suitable materials for the claimed water
absorbent layer. (J d. ( citing Mallol 2: 1--4) ). Appellants' arguments are not
persuasive.
As the Examiner found, the Specification describes that the water
absorbent layer "may comprise cellulose and/or paper and/or cotton." (Spec.
,r 9). Consequently, Appellants have not identified reversible error in the
Examiner's findings set forth above that Mallol teaches the same materials
for the fibrous substrate layer as Appellants disclose for the water absorbent
layer, and therefore, it is reasonably expected that Mallol's fibrous substrate
layer would be capable of performing the recited function. (see Ans. 13; see
Mallol 1:65-2:15; see also Spec. ,r 9).
Thus, Appellants have the burden of showing that Mallol's fibrous
substrate layer would not be capable of performing the claimed function or
inherently have the claimed property. On this record, Appellants have not
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met their burden and, therefore, a prima facie case of anticipation, or in the
alternative, of obviousness has been established. See Best, 562 F.2d at 1255.
Claims 2 and 17
Appellants' separate arguments for reversal of dependent claims 2 and
17 do not dispute that Mallol teaches the same materials for the fibrous
substrate layer as Appellants teach for the claimed water absorbent layer.
Furthermore, Appellants have not met their burden in showing that Mallol' s
fibrous substrate layer would not be capable of performing the claimed
function or inherently have the claimed properties required by claims 2 and
17. See Best, 562 F.2d at 1255.
For the reasons set forth above regarding claim 1, Appellants'
arguments urging reversal of the anticipation, or in the alternative, the
obviousness rejection to claims 2 and 17 are similarly unpersuasive.
On this record, we affirm the Examiner's rejection of claims 1, 2, 3,
15, and 17 under 35 U.S.C. § 102(b) as anticipated by or, in the alternative,
under 35 U.S.C. § 103(a) as obvious over Mallol for the reasons presented
above and given by the Examiner.
Rejections (6}-(10): 35 U.S.C. § 102(b) or 35 U.S.C. § 103(a)
On this record, we affirm the Examiner's rejections (6}-(10) under 35
U.S.C. § 102(b) as anticipated by or, in the alternative, under 35 U.S.C.
§ 103(a) for the reasons presented above and given by the Examiner.
DECISION
The Examiner's decision is affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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