Appeal No. 2000 0921
Application No. 08/366,090
substrate. In light of this well reasoned argument, the examiner’s
unvarnished position to the effect that the claimed subject matter
would necessarily result from using Roessler’s hook material simply
because the hook material of the reference is similar to that used
by appellants in making the claimed invention cannot be sustained.
We are likewise in agreement with appellants that there is no
factual basis for the examiner’s contention (final rejection, page
2; answer, pages 3-4) that Gurley stiffness values can vary from
sample to sample, such that even if Roessler stated a Gurley
stiffness value, there would be no way to correlate a Roessler
value with the claimed values. The examiner’s contention (final
rejection, page 3; answer, page 4) that the burden is on appellants
to prove that the fastening tabs of Roessler will not have a Gurley
stiffness value within the claimed range is simply wrong. See In
re Oetiker, 977 F.2d at 1445, 24 USPQ2d at 1444.
We have also considered whether Roessler would have rendered
obvious a fastener tab having a Gurley stiffness value of less than
about 1000 milligrams in the area of the fastening tab that
includes the first mechanical fastener component, but find nothing
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