Appeal No. 2002-0913
Application No. 09/107,643
there is evidence in the record to the contrary.5 For these
reasons, Tracy II is not persuasive that the ‘681 design
application provides descriptive support within the meaning of
the first paragraph of 35 U.S.C. § 112 for the “plastic layer”
limitation or any of the other above noted limitations of the
appealed claims.6
In light of the foregoing, we conclude that appellant has
not established that the appealed claims should be accorded the
benefit of the filing date of the ‘681 design application.
Issue (2): Has appellant established that the claimed invention
was completed prior to the effective filing date of Foreman?
Assuming, arguendo, that the appealed claims can be accorded
5
5In the ‘681 design application, the Figure 3 sectional view
of an edge of the diaper is not cross hatched in the manner
conventionally used to indicate plastic. In addition, see U.S.
Patent 4,230,113, issued to Mehta on October 28, 1980, and cited
by appellant in the Information Disclosure Statement filed
June 30, 1998 (Paper No. 4). Mehta states at column 2, lines
33-38, that the outer moisture impervious layer of the disposable
diaper thereof may comprise waterproofing treated cotton
sheeting.
6
6We do not consider Tracy I, discussed below, to address
issue (1).
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