Appeal No. 2002-0913
Application No. 09/107,643
In the present instance, we consider that claim 11 is
directed to a disposable diaper per se which does not require the
presence of the wearer. This interpretation is both consistent
with appellant’s specification as a whole and appellant’s view of
the scope of claims 11 and 12 (see pages 39-40 of the main
brief). In that we do not agree with the examiner’s
interpretation of claims 11-12, which interpretation is essential
to the standing § 101 rejection, it follows that we shall not
sustain this rejection.
Rejection (2)
A threshold issue in the examiner’s rejections based on
Foreman is whether Foreman qualifies as prior art against the
appealed claims.
The Foreman patent issued on March 28, 1989 on an
application filed on October 30, 1987. The front page of the
Foremen patent indicates that the application that matured into
the Foreman patent was a continuation of an application filed on
October 10, 1986. Thus, on its face, the effective filing date
of the Foreman patent is October 10, 1986 (i.e, the filing date
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