Appeal No. 97-1027
Application 08/218,954
to be properly anticipatory, each and every element of the
rejected claim must be found either expressly described or under
the principles of inherency in the applied reference. See, inter
alia, RCA Corp. v. Applied Digital Data Systems, Inc., 730 F.2d
1440, 1444, 221 USPQ 385, 388 (Fed. Cir. 1984).
In the present case, all three of the independent claims 32,
38, and 42 require in substance that the transverse wicking rate
of the second absorbent layer be higher than the transverse
wicking rates of the first and third absorbent layers thereby
enabling the absorbed body fluid to be transversely routed in the
second layer faster than in either the first or the third layer.
In support of his position that this limitation is met by the
Osborn patent, the examiner has made the following findings with
regard to this reference:
The embodiment of Figure 4 of Osborn comprises a
first absorbent layer 34; a second absorbent layer
28 with an oval configuration, a thickness less
than that of first absorbent layer 34 (Figure 2),
a greater transverse width, and a higher trans-
verse wicking rate (column 8, lines 29-36); a
third absorbent layer 31 with a transverse width
intermediate that of the first and second absorb-
ent layers; and attachment panels 71. That the
second absorbent layer 28 has a greater wicking
rate than the third absorbent layer 31 is evident
from discussion of the intended functioning of the
device (column 8), particularly in that layer 31
“improves lateral wicking” (column 8, lines 8-9)
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