Appeal No. 98-2812
Application 08/473,054
OPINION
After careful consideration of appellants specification and claims, the teachings of the applied
references and each of the arguments and comments advanced by appellants and the examiner, we
have reached the determinations which follow.
Turning first to the examiner's rejection of the appealed claims under the judicially created
doctrine of obviousness-type double patenting, we observe that appellants have not disputed the
examiner's position regarding the merits of this rejection. Instead, as noted on page 3 of their brief,
appellants have merely indicated their intention to submit a terminal disclaimer, which terminal disclaimer
has not as of yet been filed. Accordingly, we are constrained to affirm the examiner's double patenting
rejection of claims 1, 2, 4 and 6 through 19.
We turn next to the examiner's rejection of claims 1, 2, 4, 6, 8, 10 through 16, 18 and 19 under
35 U.S.C. § 102(e) as being anticipated by Zehner ‘453. With regard to independent claim 1,
appellants essentially concede that Zehner ‘453 discloses appellants’ claimed subject matter with the
exception that Zehner ‘453 does not disclose or teach that the elastic strands (56) associated with the
internal barrier structures (52) of the absorbent article therein are constructed or arranged such that “at
4
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