Appeal No. 98-2812
Application 08/473,054
After a careful evaluation of Zehner ‘453, it is our opinion that the examiner's reasoning in this
anticipation rejection is fraught with speculation and conjecture. Like appellants, we find the showing in
Figure 4 of the applied reference to be inconclusive with regard to the purportedly different radii of
curvature of the elastic members (56), and conclude that neither the applied reference nor the examiner
provides an adequate factual basis to establish that the natural result flowing from following the
teachings of Zehner ‘453 would be an absorbent article having an elasticized bumper with an elasticized
cover comprising “a plurality of generally parallel elastic strands with at least one of the elastic strands
having greater elastic power than at least one other elastic strand,” as required in appellants’
independent claim 1 on appeal. As explained in In re Oelrich, 666 F.2d 578, 581, 212 USPQ 323,
326 (CCPA 1981), inherency may not be established by probabilities or possibilities, but must instead
be "the natural result flowing from the operation as taught." Thus, we will not sustain the examiner’s
rejection of independent claim 1, or of claims 2, 4, 6, 8, 10 and 11 which depend therefrom, under 35
U.S.C. § 102(e) based on Zehner ‘453.
Concerning the dissenting opinion of our colleague regarding the examiner's
anticipation rejection of independent claim 1 on appeal, we concede that it is possible that the elastic
strands (56) in Zehner which are closest to the centerline of the diaper may have a slightly greater
degree of elongation than the stands closest to the outer edge of the diaper. However, we can not say
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