Appeal No. 1998-2817
Application No. 08/455,366
creep). Therefore, it is desired to make sure this
reduction in wearing forces over time doesn't fall below a
minimum for wearing stability. The elastic creep
(decay) should be kept to a minimum. See column 34,
lines 51 et seq. (Weil et al further teaches the
waist elastic system should not have insufficient
contractive forces that result in the diaper
slipping down after being worn and loaded. In
contrast, exces-sive contractive forces may reduce
the comfort for the wearer producing pressure
markings on the wearer's skin See column 34, lines
20 et al. [sic: et seq.]) (emphasis in original)
The examiner then concluded (answer, p. 7) that
[i]t would have been obvious to one having ordinary
skill in the art to have utilized the concept of
keeping the elastic decay to a minimum as taught by
Weil et al with the closed-loop waist elastic system
of Ales et al to maintain the functional integrity
of the waist system over repeated cycling.
In regards to the specific claimed decay values,
it would have been obvious to one having ordinary
skill in the art to have kept this value to a
minimum. Also, lacking any criticality in the
specification, the use of the claimed "decay" values
in lieu of those used in the references solves no
stated problem and would have been an obvious matter
of design choice within the skill of the art.
The appellants’ argue that neither Ales nor Weil provides
any description or suggestion regarding the decay of the
elastic waistband over a number of cycles and that it is
improper for the examiner to combine the concept of Weil with
the teaching of Ales. We are not persuaded by this argument
because Weil does,
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