Appeal No. 2000-1121
Application No. 08/827,656
example, in column 3 of Rutherford “fully meets the
requirements of Claim 26” (answer, page 4). More
specifically, the examiner states: “It appears from Figure 1a
[of Rutherford] that the shape
and appearance of the article is like that of an elongated
cigarette filter, having a longitudinal axis, two ends and
being
made of a gathered web or filamentary tow substrate extending
from end to end of the rod” (answer, page 4; emphasis added).
As correctly argued by the appellants, however, patentee’s
articles “clearly do not meet the language of claim 26 that
the rod is ‘made of a gathered web or filamentary tow
substrate extending from end to end of said rod, said rod
being overwrapped with a sheet material overwrap’” (brief,
pages 6-7; emphasis added). This is because the article of
Rutherford including its “substrate” or core is made of
extruded polymer (e.g., see the paragraph bridging columns 10
and 11) rather than “a gathered web or filamentary tow” as
required by appealed independent claim 26.
Under these circumstances, we cannot sustain the
examiner’s Section 102 rejection of claims 26, 29, 35 and 36
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