Appeal No. 2002-1749
Application No. 09/395,270
addition, appellant’s specification at page 6, lines 5 to 10,
indicates that the claimed thickness range is selected to be
thick enough to be dimensionally stable yet not so thick that it
functions to add additional padding. Under these circumstances,
the claimed range cannot be dismissed as a matter of design
choice, as the examiner appears to have done. Compare In re
Kuhle, 526 F.2d 553, 555, 188 USPQ 7, 9 (CCPA 1975), where the
use of particular connection in lieu of those used in the prior
art was held to be an obvious matter of design choice within the
skill in the art where the particular connection solves no stated
problem. Here, the claimed thickness range is described in the
specification as solving a stated problem (i.e., providing a
degree of dimensional stability without providing additional
padding) and therefore cannot be dismissed as a matter of design
choice.
In light of the foregoing, we shall not sustain the
rejection of claim 10 as being unpatentable over Wyman in view of
SIGA.
Rejection (2)
Claim 9 depends from claim 1 and adds that the backing is
made from a spun-bonded, non-woven fabric having a thickness of
approximately 8 mils.
8
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