Appeal No. 2002-0913
Application No. 09/107,643
Claim 11 is directed to an improved disposable diaper
comprising, in pertinent part,
a horizontally oriented strip, said strip being
distinct from the top and bottom sheets, said strip
being located at the waistband between the plastic edge
and the wearer at a position so that the strip contacts
the skin of the wearer. [Emphasis added.]
Claim 12 depends from claim 11 and adds that strip of the
disposable diaper is a padded member.
In responding to appellant’s argument, the examiner explains
the rationale for the rejection of claims 11-12 under § 101 as
follows:
[T]he claims state “the strip contacts the skin of the
wearer”, therefore the article must be in use in order
to satisfy this limitation, the article as it is
presently claimed cannot stand on its own without the
wearer being present. By changing the word “contacts”
into “is capable of contacting” or “is provided to
contact” it states that the article is fully capable of
performing his [this?] function, but recites only
limitations of the article, the wearer need not be
present. [Answer, pages 11-12.]
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