Appeal No. 2001-2629 Page 8
Application No. 08/931,080
back segments of the reusable portion of the garment are fastened together at the
sides, and thus none have an endless encircling waistband. The examiner takes the
position that it would have been obvious to one of ordinary skill in the art to modify the
Schmitz garment by replacing the non-removable absorbent pad with a removable one,
“in view of the recognition that such would enable more universal usage by all different
kinds of users,” as expressed by Schmitz in lines 17-20 of page 5 (Paper No. 16, page
5). We note, however, that in the cited paragraph, Schmitz merely states that the term
“absorbent article” in the description of the invention includes adult incontinence
products, female hygiene pads, baby diapers and training pants, which does not
provide reasoning in support of the examiner’s proposed modification of Schmitz and
does not alter the fact that Schmitz discloses only a one-piece disposable article.
The mere fact that the prior art structure could be modified does not make such
a modification obvious unless the prior art suggests the desirability of doing so. See In
re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir. 1984). We fail to
perceive any teaching, suggestion or incentive in any of the applied references which
would have led one of ordinary skill in the art to modify the Schmitz garment in the
manner proposed by the examiner. The objective of the Schmitz invention is to provide
an improved disposable absorbent article (page 3), and we therefore see no reason
why the artisan would be motivated to modify this single use article so that the
absorbent pad can be replaced, for that would destroy the essence of the Schmitz
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