Appeal No. 98-2787
Application 08/554,640
the claimed structure and the function it performs are
different from the prior art.
In support of our above determination, we observe that in
the present case the examiner has himself expressly noted
(answer, page 4) that he
"does not hold that to have provided the claimed
structural limitation to the device of Roessler et
al. would have been obvious at the time of the
Appellants’ invention,”
but rather that he maintains that the purportedly “routine
changes” between the absorbent article of the Roessler patent
and appellants’ claimed invention “are insufficient to be
patentably distinguishing.” Such a position on the examiner’s
part applies an entirely inappropriate standard for
obviousness under
35 U.S.C. § 103.
For the above reasons, the decision of the examiner
rejecting claims 1 through 20 under 35 U.S.C. 103 is reversed.
REVERSED
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