Appeal No. 95-1064
Application 07/995,347
folded tape with an adhesive-free central portion. Reference is
made to the examiner’s answer for further details of these
rejections.
In support of patentability, appellant argues, inter alia,
that the Damico reference is non-analogous art because it relates
to diapers rather than warming devices, that the Smith reference
also is non-analogous art because it relates to wound dressings
rather than warming devices and that, in any event, the
examiner’s proposed combination of reference teachings does
not meet the terms of the appealed claims.
We have carefully considered the issues raised in this
appeal together with the examiner’s remarks and appellant’s
arguments. As a result, we conclude that the rejections of the
appealed claims cannot be sustained. Our reasons for this
conclusion follow.
It is well settled that a rejection under § 103 must rest on
a factual basis. See In re Warner, 379 f.2D 1011, 1017, 154 USPQ
173, 178 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968).
Furthermore, the modification suggested by the prior art must
arrive at the claimed invention. See In re Lalu, 747 F.2d 703,
705, 223 USPQ 1257, 1258 (Fed Cir. 1984).
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