Appeal No. 2002-0913
Application No. 09/107,643
Appellant’s arguments and evidence concerning these matters
have been considered but are not persuasive. In short, the
above-noted claim limitations are not inherent in the disclosure
of the ‘681 design application because it has not been shown that
the limitations in question have clear support from the necessary
and only reasonable construction to be given the disclosure of
the ‘681 design application by one skilled in the art. Kennecott
Corp., 835 F.2d at 1423, 5 USPQ2d at 1198.
As to the Tracy II declaration relied upon by appellant in
conjunction with these matters, we have carefully considered this
declaration but find it to be insufficient in its purpose of
establishing what one of ordinary skill in the art would have
understood the ‘681 design application to disclose. By way of
example, take paragraph 5 of Tracy II, wherein declarant states:
I understood that the outermost layer illustrated in my
figures 1-3 of my design application Serial No. 93,681
represented a plastic layer of a disposable diaper.
Due to the prevalent nature of disposable diapers
having the outer layer as plastic in that time era, I
believe that the person of ordinary skill in the diaper
designing art would understand from my figures and from
the title of my design patent application that the
outer layer was plastic.
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