Appeal No. 98-2812
Application 08/473,054
Pate, Administrative Patent Judge, Concurring-in-part and Dissenting-in-part
I concur in the rejection of claims 1, 2, 4, and 6 through 19 based on the ground of
obviousness-type double patenting. I also concur in the majority’s reversal of the rejection under 35
U.S.C. § 102(e) of claim 12 based on the Zehner reference.
I dissent with respect to the rejection of claims 1, 2, 4, 6, 8, 10 and 11 under 35 U.S.C.
§ 102(e) as unpatentable over Zehner. The examiner argued that the elastic power of one of the elastic
strands of Zehner must inherently be greater than the elastic power of at least one other strand. The
majority states that this rejection is fraught with speculation and conjecture. I do not believe that this is
so. It is my view that the examiner’s finding of anticipation is based on simple logic.
The appellants have defined the claim terminology “elastic power”, in the specification, in terms
of the retractive force of one of the multiple elastic strands. Power and force are not the same. Be that
as it may, I am constrained to use the definition appellants have used in the specification and the
examiner has used in the rejection. The examiner points out that when we talk of a spring or retractive
force, Hooke’s Law is the operative physical relationship. The law states that the spring or retractive
force is equal to the amount of displacement of the spring multiplied by the spring constant. Thus, when
two identical strands are stretched to different lengths, the strand that is stretched a greater distance will
generate a proportionally greater force.
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