Appeal No. 95-3512
Application 08/092,540
least one of said waistband portions . . . to present a soft
surface at said inside of the diaper waistband despite the
plastic material at the edge of the body portion.” Claim 41
calls for the waist band to include “plastic material at border
edges thereof” and “a padding member extending along an opposite
edge portion at an exposed surface of the waist band . . .
including at least one strip of material formed from a soft
substance . . . forming a soft surface for contact with the skin
of the individual at least one of the border edges.”
As indicated above, the examiner concedes that the Gilles
diaper does not meet the noted limitations in claims 26, 34 and
41 relating to the plastic layer or material. In this regard,
the Gilles diaper is made essentially of cloth fabric and is not
disclosed as containing any plastic layer or material of the sort
required by the claims. The examiner’s conclusion that it would
have been an obvious matter of design choice to provide the
Gilles diaper with such a plastic layer or material is not well
founded.
Rejections based on 35 U.S.C. § 103 must rest on a factual
basis. In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 177-78
(CCPA 1967). In making such a rejection, the examiner has the
initial duty of supplying the requisite factual basis and may
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