Appeal No. 2002-0913
Application No. 09/107,643
basing a rejection on § 103 when, in fact, the actual ground of
rejection is that the claims are anticipated by the prior art has
been sanctioned by a predecessor of our present review court in
In re Fracalossi, 681 F.2d 792, 215 USPQ 569 (CCPA 1982) and
In re Pearson, 494 F.2d 1399, 181 USPQ 641 (CCPA 1974). For
these reasons, appellant’s arguments of nonobviousness with
respect to these claims are simply not germane to the novelty
issue discussed above. The standing § 103 rejection of claims 7,
12 and 32 is therefore sustained.
Rejection (4)
We do not sustain the rejection of claims 7-40 as being
anticipated by or, in the alternative, as obvious over McConnell.
McConnell discloses a diaper retaining garment “for
retaining a diaper, generally of the disposable type, in position
adjacent the perineal region of a wearer” (column 1, lines 21-
28). The garment consists of a generally rectangular sheet of
flexible polymeric cellular material having snap fasteners
secured at its four corners. Folded about the side and end edges
of the sheet is an elastic strip 21 and an overlying outer strip
23
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