Appeal No. 96-3720 Page 3
Application No. 08/230,825
We cannot sustain this rejection.
As correctly indicated by the appellants, Lumb teaches in
column 5 that the adhesive must be discontinuous so as not to
interfere with the moisture vapor transport properties of the
fabric whereas the claims on appeal expressly require that the
adhesive forms "a continuous layer" (see each of the appealed
independent claims 1, 5 and 9) between the sheets or layers of
film. This argument by the appellants has not been even
acknowledged much less rebutted by the examiner on the record
before us. As a consequence, the examiner necessarily has
failed to carry her initial burden of establishing a prima
facie case of obviousness within the meaning of 35 U.S.C. §
103.
For the above stated reasons, we cannot sustain the § 103
rejection of claims 1-12 as being unpatentable over Lumb.
The decision of the examiner is reversed.
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