Appeal No. 2000-1728 Page 11
Application No. 08/785,128
first is that the DesMarais primary absorbent member is “from about 3 to about 6
centimeters in width” (column 5, lines 65 and 66), which falls within the range of “about 0.5
to 5 cm wide” preferred for the appellants’ invention (specification, page 11). The second
is that the primary absorbent members are made of the same types of materials. For
example, DesMarais discloses, among others, comminuted wood pulp fibers (column 3,
line 57), foam (column 4, line 3) and cellulose (column 4, line 11), which are mentioned in
the appellants’ specification on pages 7 and 8 as being suitable for the inventive napkin.
From our perspective, if the uppermost absorbable member of the DesMarais napkin and
the claimed napkin are the same size and are made of the same materials, it stands to
reason that they both will meet the labial groove limitation of claim 13.
This conclusion is, in fact, confirmed in the paragraph bridging pages 2 and 3 of the
appellants’ specification, where “the commonly assigned” DesMarais patent is described
in the background of the invention section in essentially the same terms as the quotation
above that described the claimed invention. The appellants state, in continuing a
description of the DesMarais napkin which was begun in the preceding paragraph, that
[t]he primary menstrual pad is preferably narrow enough to at least reside
partially within the external genitalia. Optionally, the primary menstrual pad
may be wider than the distance between the labia majora, but exhibits a
lateral compression or conformability at relatively low forces, such as
forces exerted by the soft tissue of the female genitalia, such that a portion of the
primary menstrual pad is able to at least partially reside within the female external
genitalia (emphasis added).
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