Appeal No. 2000-1728 Page 6
Application No. 08/785,128
(see translation, pages 3 and 5). Not only is no structure shown for joining the two
members together by union means, in the manner of the claimed invention, but to do so
would destroy the invention disclosed in the reference. With regard to the examiner’s
position, adhesive 14 bonds portion 8 of the lower sleeve to secondary absorbent member
3. However, adhesive 24 is exposed only when absorbent member 21 is used on its own
as a panty liner, and is not utilized to bond it to the inside of sleeve portion 2 when it is
used in conjunction with absorbent member 3 to form a compound sanitary napkin
(translation, pages 7 and 8). Thus, the elements named by the examiner as constituting
the “union means” do not, in fact, do so.
Moreover, “being joined . . . by union means” is a means-plus-function recitation,
and it must be evaluated in the context of the sixth paragraph of 35 U.S.C. § 112. In order
to meet a means-plus-function limitation, the prior art must perform the identical function
recited in the means limitation, and perform that function using the structure disclosed in
the appellant’s specification or an equivalent structure. See Valmont Indus. Inc. v. Reinke
Mfg. Co., 983 F.2d 1039, 1042, 25 USPQ2d 1451, 1454 (Fed. Cir 1993). As to the first
requirement, even if one were to consider that the Japanese reference accomplishes the
same function as the claimed system, it does not do it using the same structure disclosed,
that is, adhesive, heat sealing, or ultrasonic welding, and thus this test is not met. While
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