Appeal No. 95-3512
Application 08/092,540
not, because of doubts that the invention is patentable, resort
to speculation, unfounded assumptions or hindsight reconstruction
to supply deficiencies in the factual basis. Id. Here, the
examiner has failed to supply any factual basis to support the
conclusion that the provision of a plastic layer or material as
recited in the claims to the Gilles diaper would have been an
obvious matter of design choice. Indeed, the cloth fabric
construction of the Gilles diaper would appear to teach away
from the proposed modification. The diaper retaining garment
disclosed by McConnell is of no help to the examiner in this
regard. Thus, it is evident that the examiner has resorted
speculation, unfounded assumptions and/or hindsight
reconstruction to supply the acknowledged deficiency in the
prior art basis for the appealed rejection.
The combined teachings of Gilles and McConnell also would
not have suggested a diaper having a soft padding member as
recited in independent claims 26, 34 and 41. Although both the
Gilles diaper and McConnell diaper retaining garment include
cloth or fabric border strips, there is nothing in these
references to indicate that such strips constitute soft padding
members as alleged by the examiner.
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