Appeal No. 97-2597
Application 08/176,056
According to the examiner, Boland includes all of the
claimed structure “except for 1) the specific structure of the
laminate and 2) a core between the elastomeric lamina and the
first lamina” (final rejection, page 4). With respect to the
first deficiency, the examiner contends that “to make the
elastic laminate of Boland et al elastic laminate as claimed .
. . would be [sic, have been] obvious to one of ordinary skill
in the art in view of the interchangability as taught by
Proxmire” (final rejection, pages 4-5). As to the second
deficiency, it is the examiner’s position that
Applicant does not disclose the criticality of
such structure over the other structures, i.e., no
criticality of the claimed structure of Figure 3
over that in Figure 4. Therefore, it would have[3]
been [an] obvious matter of design choice to employ
the claimed structure on Boland et al since
Applicant has not disclosed that such structure
solves any stated problem or is for any particular
purpose and it appears the article would work
equally well with various structures. See also In
re Japikse, 86 USPQ 70 (CCPA 1950) (shifting
location of parts where operation not otherwise
modified.) [Final rejection, page 5.]
The examiner further explains her position with respect
3 The “structures” the examiner is referring to here are
the undergarment constructions illustrated in Figure 3 and
Figure 4 of the present application.
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