Appeal No. 97-3008
Application 08/211,222
The examiner’s rejections are explained on page 2 of the
final rejection (Paper No. 8) and page 3 of the first Office
action (Paper No. 5). The arguments of the appellant and3
examiner in support of their respective positions may be found on
pages 3-14 of the brief, pages 1-6 of the reply brief and pages
4-6 of the answer.
Although the examiner’s position, taken as a whole, is less
than clear, it appears that the examiner considers the position
set forth in the first Office action (Paper No. 5), with respect
to claim 3, to now be applicable to independent claim 1. This
position states that:
Applicant claims elasticized darts which Merica
does not clearly teach, see page 2, lines 117-127.
However, Gubik et al teaches elasticizing pleats or
darts, see 4b, 4c, 4d, 4e, 4f in Figures 1-3 thereof
and col. 3, lines 58-60. To employ elasticized pleats
or darts as taught by Gubik et al on the Merica device
would be [sic, have been] obvious to one of ordinary
skill in the art in view of the recognition that such a
feature would better position the absorbent [sic] and
better seal the garment to the wearer, i.e., less
leakage and the desirability of such in Merica. [Page
5.]
It also appears from page 5 of the answer that the examiner
3In setting forth the grounds of rejection on page 3 of the answer the
examiner has incorporated by reference both Paper Nos. 5 and 8. Such a
procedure by the examiner is totally improper and inappropriate. Manual of
Patent Examining Procedure (MPEP) § 1208 (6th ed., Rev. 3, Jul. 1997)
expressly provides that incorporation by reference may be made only to a
single other action.
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