Appeal No. 1997-3342
Application No. 08/389,086
reduction to practice of an article which falls within the
scope of claim 1.
As to the invention defined by claims 5 through 9, the
examiner has taken the position that it would have been
obvious to position a waistcap/waistband over one end of each
barrier cuff disclosed in Figures 8 and 9 of Vandemoortele in
view of the teaching of Robertson (answer, page 6).
Where the differences between the claimed invention and
the disclosure of the reference are so small as to render the
claims obvious over the reference, an affidavit or declaration
under 37 CFR § 1.131 is required to show no more than the
reference shows. In re Stryker, 435 F.2d 1340, 1341, 168 USPQ
372 (CCPA 1971). Since we have already determined, supra.,
that the Feist affidavit establishes reduction to practice of
an article which falls within the scope of claim 1 and shows
as much of the invention as is shown by Figures 8 and 9 of
Vandemoortele, it follows that the Feist affidavit is also
sufficient to overcome the standing 35 U.S.C. § 103 rejections
of claims 5 through 9.
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