Appeal No. 1998-2818 Application 08/550,521 1995) and In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968). In short, Uni-Charm and Kao, when taken alone, do not provide the factual basis necessary to support the examiner’s conclusion of obviousness. Concerning the examiner’s position that appellant has not established the criticality of forming the side panels separately, we observe that criticality is not a requirement of patentability. See W.L. Gore & Assocs. v. Garlock, Inc., 721 F.2d 1540, 1556, 220 USPQ 303, 315 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984). We also note the examiner’s position that appellant’s specification does not mention the advantage of allowing the use of one size body for wearers of different waist sizes asserted by appellant on page 4 of the brief as flowing from the use of separately formed side panels. The examiner implies that this is significant. Assuming for the sake of argument that the examiner’s position that the asserted advantage of the claimed arrangement is not found in the specification, simply because an argument asserting an advantage of the claimed invention over the prior 10Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 NextLast modified: November 3, 2007