Appeal No. 97-0771
Application No. 08/405,385
regardless of the modification intended, the examiner’s
position is not well taken.
Finlay’s shorts garment is "particularly . . . suited for
runners or joggers" (column 1, lines 5-6). As such, the
artisan would reasonably presume that it would be advantageous
to use fabric in the construction of Finlay’s garment that
provides for a certain amount of breathability. Turning to
Boll, based on the teaching thereof that prior art waterproof
garments lack adequate ventilation and that the way to
alleviate this problem is to provide an "open faced" garment,
it is our view that one of ordinary skill in the art would
consider Boll’s waterproof material to be ill suited for use
in the construction of Finlay’s garment because it would make
Finlay’s running shorts hot and uncomfortable to a runner or
jogger. Accordingly, we agree with appellant that it would
not have been obvious to one of ordinary skill in the art to
modify Finlay by incorporating into one of the panels thereof
a material which forms a barrier against moisture penetration,
as proposed by the examiner, in view of the teachings of Boll.
This constitutes a first reason necessitating reversal of the
examiner’s rejection of claims 15-20.
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