Appeal No. 95-4526
Application 08/200,251
establish criticality of the claimed range, criticality,
whatever may be intended by that term, is not a requirement of
patentability under the patent statute, but is merely one of
the indicia suggestive of nonobviousness. See, for example,
In re Luvisi, 342 F.2d 102, 108, 144 USPQ 646, 651 (CCPA
1965). In short, the examiner’s position that the combined
teachings of Sukiennik and Nosaki would have led the
ordinarily skilled artisan to an absorbent article wherein the
first material in conjunction with the separation means has a
rewet value of less than 0.1 grams is, at best, speculative.
We therefore shall not sustain the standing § 103
rejection of claim 47 as being unpatentable over Sukiennik and
Nosaki. Furthermore, in that independent claims 46, 48 and
52-54 also recite that the first material in conjunction with
the separation means have a rewet value of less than 0.1
grams, the presence of this limitation constitutes an
additional reason for not sustaining the § 103 rejection
thereof based on Sukiennik and Nosaki.
Claim 56 depends from independent claim 4, discussed
below, and adds that the first material in conjunction with
-10-
Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: November 3, 2007