Appeal No. 2007-0752 Page 6
Application No. 09/957,109
16-17), (ii) that may be adjusted in size, depending on panty size,
[and] (iii) by folding the pantiliner along at least one embossed fold
line so as to allow periphery side areas of the pantiliner to be
positioned under a panty prior to, and while said pantiliner is in use,
and[ ] (iv) such folded pantiliner when in use having a first
longitudinal end being wider than the second longitudinal end.
Brief, page 4. Of these four features, appellants assert that Unger does not
teach features (i) – (iii). Brief, page 7. In this regard, appellants assert that
Unger’s “pantiliner is neither capable of being configured as recited in applicants’
invention, nor would it be able to function as the Unger pantiliner is intended to
function if the Unger pantiliner were modified to try and obtain the combination of
features recited as applicants’ invention.” In support of this assertion, appellants
direct attention to Unger, page 2, last paragraph, page 7, first full paragraph,
figure 8, page 9 first full paragraph, and page 10, first full paragraph. Brief,
page 7. According to appellants, the cited sections of Unger demonstrate that
Unger’s “disclosure is directed to a pantiliner that will assume a ‘W’ shaped
cross-sectional configuration when the napkin is placed in use in a wearer’s
panty.” Brief, page 8. According to appellants (id., emphasis removed), Unger
“does not enable a pantiliner having periphery side areas to be position[ed] under
a panty prior to, and while said pantiliner[ is] in use, and thus being adjustable in
size depending on panty size.”
In response, the examiner asserts that appellants’ “claim language does
not require the entirety of the napkin outside the embossed fold lines, i.e. the
entirety of the periphery side areas, be positioned under the panty prior to and
while in use.” Answer, page 8. In the examiner’s opinion, “portions of [Unger’s]
elements 50 are allowed, explicitly or inherently, to be positioned as claimed
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