Appeal No. 98-2812
Application 08/473,054
with any degree of certainty that this is, in fact, the case. In our opinion, the showings and disclosure of
the Zehner patent are simply too ambiguous to support the examiner's determination based on
inherency. The evidence provided by the Zehner patent does not establish that appellants' claimed
characteristic of the elastic elements is necessarily present in the diaper of that patent.
As for the examiner’s rejection of independent claim 12 under 35 U.S.C. § 102(e) based on
Zehner ‘453, we note that this claim requires an absorbent article with elasticized bumpers disposed in
each of the margins, wherein each of the bumpers includes an internal barrier structure (e.g., 62 of
appellants’ Fig. 4) bonded to one of the margins, and an elasticized cover (64) disposed over the
internal barrier structure and having lateral portions bonded to one of the margins (e.g., at 72), with the
elasticized cover further being “unadhered to the internal barrier structure.” While it is true that one of
the embodiments described by Zehner ‘453 would have the elastic members (56) bonded to the top
sheet (20) and not to the cushion barrier or bumper (52) as was noted by the examiner on page 7 of the
answer, we observe that the disclosure of Zehner ‘453 is silent concerning the remainder of the top
sheet or cover (20) vis-V-vis the cushion barriers or bumpers (52). Noting the similar elastic elements
(50) and barrier structure (48) pointed to by the examiner in Figure 3 of Zehner ‘453, it appears to us
that the top sheet (20) on either side of the elastic members (50) folds downwardly to conform to the
sides of the barrier structure (48), with Zehner ‘453 being silent concerning the presence or absence of
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