Appeal No. 95-5027
Application 08/993,198
of the Answer:
[S]upported by Lindquist et al, Lawson and Kao, [the
Examiner] takes Official Notice of the fact that a
non-resilient partition with an elastically
extensible member thereon is known in the absorbent
arts to be equivalent to resilient material for use
in resilient barrier sections. To substitute a non-
resilient partition with an elastically extensible
member thereon in Enloe for the disclosed resilient
material partition would have been obvious
functional equivalent. In so doing, the modified
Enloe device would include a non-resilient partition
as part of resilient barrier section.
First of all, “Official Notice” may be taken “only of
facts outside the record which are capable of instant and
unquestionable demonstration as being ‘well-known’ in the art”
(MPEP Section 2144.03, citing In re Ahlert, 424 F.2d 1088, 165
USPQ 418, 420 (CCPA 1970), emphasis added). We hardly believe
that to be the case in this instance.
Looking past the examiner’s reasoning, we focus on the
fact that the appellants’ claim 1 requires that the partition
be nonresilient, whereas the partition disclosed in Enloe is
resilient. From the explanation provided in column 5, such
resiliency would appear to be necessary in order for the Enloe
invention to function in the desired manner, which would
constitute a disincentive to replace it with a nonresilient
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