Appeal No. 2000-0855
Application No. 08/597,377
together
through said perforations portions of the layers of at least
partially meltable material located opposite said perforations
by heat fusion so that the layers are bonded to one another
through the perforations as recited in claim 1, but the
examiner acknowledges that Proxmire does not teach the step of
passing a uniformly stretched elastic band over a bonding
roller having a pattern of raised portions as called for in
claim 3. Nevertheless, the examiner concludes that the step
recited in claim 3 is a matter of engineering design choice.
However, the case the examiner relies upon (answer, p.
6), In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975), does
not support the examiner’s position. In Kuhle, "the applicant
failed to set forth any reasons why the differences between
the claimed invention and the prior art would result in a
different function or give unexpected results." In re Chu, 66
F.3d, 292, 298-9, 36 USPQ2d 1089, 1094 (Fed. Cir. 1995).
Here, the appellants explain (main brief, p. 31) that “the
formation of the perforations in the elastic band is
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