Appeal No. 2000-1728 Page 7
Application No. 08/785,128
adhesive is present in the Japanese structure, it does not attach the two absorbent
members together.
As far as the matter of equivalency is concerned, the two absorbent members in the
Japanese reference are “connected” together only in that they both are inserted into
sleeves formed from the same folded sheet, with the uppermost one of them not even
being attached to the sheet. While there is no litmus test for an “equivalent” that can be
applied with absolute certainty and predictability, there are several indicia that are
sufficient to support a conclusion of equivalency or non-equivalency. These include:
(1) Whether the prior art elements perform the function specified in the claim
in substantially the same way, and produce substantially the same results as
the corresponding structure disclosed in the specification. Odetics Inc. v.
Storage Tech. Corp., 185 F.3d 1259, 1267, 51 USPQ2d 1225, 1229-30
(Fed. Cir. 1999).
(2) Whether a person of ordinary skill in the art would have recognized the
interchangeability of the elements shown in the prior art for the
corresponding elements disclosed in the specification. Al-Site Corp. v. VSI
International Inc., 174 F.3d 1308, 1316, 50 USPQ2d 1161, 1165 (Fed. Cir.
1999).
(3) Whether the prior art elements are the structural equivalents of the
corresponding elements disclosed in the specification. In re Bond, 910 F.2d
831, 833, 15 USPQ2d 1566, 1568 (Fed. Cir. 1990).
(4) Whether there are insubstantial differences between the prior art
elements and the corresponding elements disclosed in the specification.
IMS Technology, Inc. v. Haas Automation, Inc., 206 F.3d 1422, 1436, 54
USPQ2d 1129, 1138-39 (Fed. Cir. 2000).
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