Appeal No. 2001-2629 Page 9
Application No. 08/931,080
invention. It is our view that suggestion for making the proposed modification to
Schmitz is found only in the hindsight afforded one who first viewed the appellants’
disclosure which, of course, is not a proper basis for a rejection under Section 103.
In re Fritch, 972 F.2d 1260, 1264, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992).
The combined teachings of the four references therefore do not establish a
prima facie case of obviousness with regard to the subject matter recited in
independent claim 11, and the rejection of claim 11 as being unpatentable over Schmitz
in view of Cooper, Reindl and Pigneul is not sustained. Independent claims 16 and 19
contain like limitations, and on the basis of the same reasoning the rejection of these
claims as well as dependent claim 18 also is not sustained.
In a separate rejection, the examiner also determines that claims 1 and 4 are
unpatentable over Schmitz in view of Cooper, Reindl and Pigneul. However, no
reasoning regarding this rejection is set forth other than instructions to “see discussion
of claims 11, 16 and 18-19 above” (Paper No. 16, page 6). In view of the fact that
claim 1 contains the same limitations which were the subject of our attention with regard
to the rejection of claim 11 et al. above, we shall not sustain the rejection of claims 1
and 4 for the same reasons as were set forth above with regard to claim 11.
Claims 2, 12 and 14, which depend from claims 1 and 11, are rejected on the
basis of Schmitz in view of Cooper, Reindl and Pigneul, taken further with Gagnon,
which is cited for teaching adding a seam to an absorbent material to provide stability.
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