Appeal No. 1997-4264
Application No. 08/421,131
Thus, as argued, we will sustain the standing § 103
rejection of claim 1. It follows that we will also sustain
the standing § 103 rejection of claims 21 through 24, since
they stand or fall with selected claim 1.
CONCLUSION
In summary, this panel of the board has:
reversed the rejection of claims 1 through 24 under
35 U.S.C. § 112, first paragraph;
reversed the rejection of claims 1 through 4 and 6
through 20 under 35 U.S.C. § 103 as being unpatentable over
Lawson, Van Vliet, Burger, Zafiroglu '169 and Zafiroglu '421;
reversed the rejection of claim 5 under 35 U.S.C. § 103
as being unpatentable over Lawson, Van Vliet, Burger,
'421 teaches an elastic stitch bonded fabric having a length and opposite
edges comprising a nonwoven material, e.g., spunbonded polypropylene (col. 3,
line 20), stitched with at least one spandex elastomeric yarn, e.g., LycraŽ
(col. 4, line 2) adjacent its edges. Thus, it would appear that the material
taught by Zafiroglu '421 is also capable of being used as a containment flap.
Upon the resumption of prosecution, the examiner and the appellant may wish to
refocus on the teachings of Zafiroglu '421 and determine whether any
differences actually exist between the structure recited in claim 1 and its
dependent claims and the teachings of Zafiroglu '421, keeping in mind that a
new intended use for an old product does not make a claim to that old product
patentable. In re Schreiber, supra.
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