Appeal No. 1998-2818
Application 08/550,521
1995) and In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178
(CCPA 1967), cert. denied, 389 U.S. 1057 (1968). In short,
Uni-Charm and Kao, when taken alone, do not provide the
factual basis necessary to support the examiner’s conclusion
of obviousness.
Concerning the examiner’s position that appellant has not
established the criticality of forming the side panels
separately, we observe that criticality is not a requirement
of patentability. See W.L. Gore & Assocs. v. Garlock, Inc.,
721 F.2d 1540, 1556, 220 USPQ 303, 315 (Fed. Cir. 1983), cert.
denied, 469 U.S. 851 (1984). We also note the examiner’s
position that appellant’s specification does not mention the
advantage of allowing the use of one size body for wearers of
different waist sizes asserted by appellant on page 4 of the
brief as flowing from the use of separately formed side
panels. The examiner implies that this is significant.
Assuming for the sake of argument that the examiner’s position
that the asserted advantage of the claimed arrangement is not
found in the specification, simply because an argument
asserting an advantage of the claimed invention over the prior
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