Appeal No. 2003-1818
Application 09/223,602
columns 7 and 8, and additionally on the three-layer design shown
in Figure 38. It is well settled, however, that anticipation is
not established if in reading a claim on something disclosed in a
reference it is necessary to pick, choose and combine various
portions of the disclosure not directly related to each other by
the teachings of the reference. In re Arkley, 455 F.2d 586, 587-
88, 172 USPQ 524, 526 (CCPA 1972). In the present case, the
examiner has not pointed to any teaching in Carstens, and none is
apparent, which directly relates the tissue examples described in
Table Ib, which have specific bulks and machine direction
stretches meeting the corresponding limitations in claim 8 and a
specific basis weight which does not, to the broad range of basis
weights preferred by Carstens for this particular tissue
construction and/or to the broadly described three-layer tissue
shown in Figure 38.
Thus, the examiner’s application of Carstens as an
anticipatory reference against the subject matter recited in
claim 8 is unsound. Hence, we shall not sustain the standing 35
U.S.C. § 102(b) rejection of claim 8 as being anticipated by
Carstens.
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