Appeal No. 1998-2817
Application No. 08/455,366
made, to explain why it doubts the truth or accuracy of any
statement in a supporting disclosure and to back up assertions
of its own with acceptable evidence or reasoning which is
inconsistent with the
contested statement. Otherwise, there would be no need for
the applicant to go to the trouble and expense of supporting
his presumptively accurate disclosure." In re Marzocchi, 439
F.2d at 224, 169 USPQ at 370.
With this as background, we turn to the specific
rejection under 35 U.S.C. § 112, first paragraph, made by the
examiner of the claims on appeal. The examiner's statement of
this rejection (answer, pp. 3, 4) is as follows:
The testing procedures fail to account for length
(circumference) of the waist elastic system. As
described by appellant, the test involves removing
the waist elastic system from the absorbent pant.
The waist system is then stretched between a top peg
and bottom peg. For example, a large waist system
having a circumference equal to 100,000 mm (possibly
for adults) is stretched 300 mm over three cycles.
This equates to stretching the system 0.6% its
length; this would produce little or no stress in
the elastic member. Therefore, little decay would
probably occur. However, a small system having a
10,000 mm elastic member (possible for children)
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