Appeal No. 1998-2534
Application No. 08/533,366
(Answer, page 3). We reverse this rejection for reasons1
which follow.
OPINION
The examiner finds that Himelreich discloses a net
support material made from a thermoplastic elastomer where the
net is prepared by extruding a plurality of monofilaments,
placing the monofilaments into a net-like configuration, and
then orienting the net in both the machine and transverse
directions (Answer, page 3). The examiner finds that
Himelreich does not disclose using hysteresis data to
determine the stretch conditions as required by claim 15 on
appeal (id.). The examiner concludes that “[t]he use of such
data, however, would have been obvious to one of ordinary
skill in the art at the time the invention was made” since
1Claims 15-17 were rejected under 35 U.S.C. § 112, ¶2, in
the Final Rejection dated Mar. 4, 1997, Paper No. 5, page 2.
Contrary to appellant’s statement on page 2, paragraph (3), of
the Brief, the examiner’s Advisory Action dated June 5, 1997,
Paper No. 7, fails to discuss the rejection under section 112,
much less remove the rejection. However, this rejection under
the second paragraph of section 112 has not been repeated in
the Answer and thus we consider it as withdrawn. See
Paperless Accounting v. Bay Area Rapid Transit Sys., 804 F.2d
659, 663, 231 USPQ 649, 652 (Fed. Cir. 1986).
3
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