Appeal No. 95-1064
Application 07/995,347
In the present case, the examiner concedes that the Warmgel
heat pack has no pre-attached tape or securing element of any
type. Instead, a strip of conventional adhesive tape is
apparently cut from a roll and is applied to the heat pack only
after the heat pack is wrapped around the infant’s heel. The
Damico patent, on the other hand, does disclose pre-attached
adhesive strips on a garment, namely a diaper, for securing the
diaper in place. Damico’s adhesive strips, however, do not
correspond to the flexible strips defined in independent claims
10 and 32 in that they are not releasably secured to both the
inner and outer sheets of the diaper to enable the strips to be
detached from either sheet and then attached to the other sheet.
In fact, such an arrangement appears to be undesirable in
Damico’s diaper to avoid the possibility of putting the diaper
on inside out.
Thus, even if we were to agree that the Damico reference
constitutes analogous art under the second part of the test set
forth in In re Clay, 966 F.2d 656, 658, 23 USPQ2d 1058, 1060
(Fed. Cir. 1992)(A reference is analogous if it is reasonably
pertinent to the particular problem with which the inventor was
involved.) and even if we were to agree that there is a prior art
suggestion to substitute one of Damico’s pre-attached tapes for
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