Appeal No. 95-4526
Application 08/200,251
the examiner has taken the position that the claimed subject
matter is not patentably distinguishable from the applied
prior art insofar as the rewet values are concerned because
“[a]pplicants have not been convincing in their attempt to
demonstrate the criticality of the 0.1 gram rewet value”
(final rejection, page 5). We cannot accept this position.
The examiner has advanced no convincing reasoning, and
none is apparent to us, as to why it would have been obvious
to one of ordinary skill in the art to modify the absorbent
pads of Sukiennik or Nosaki to meet the “rewet value of less
than 0.1 grams” requirement of claim 47. While Sukiennik
indicates generally that “rewetting” is a continuing problem
in the formation of absorbent articles for bodily excretions
(column 1, lines 23-26), it is not clear to us why the
ordinarily skilled artisan would make the selections of
material type, density and thickness necessary to arrive at a
rewet value that is low enough to fall within the claimed
range other than through exercise of hindsight knowledge
gleaned from first reading appellants’ disclosure. As to the
examiner’s comments regarding appellants’ alleged failure to
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