Appeal No. 2004-0327
Application No. 09/689,194
tampon which would have suggested disposing a fragrance on the
inner surface of a wrapper for Hasse’s sanitary napkin (or on the
non-adhesive side of the napkin itself). The Bernardin method
does not involve applying a fragrance to these particular
locations,2 and Hasse’s napkin, which is scented by means of its
adhesive layer, is in no need of additional fragrance. Indeed,
Bernardin actually teaches away from such a modification by
noting that a prior art practice of applying a scent to a wrapper
proved to be quite problematic (see column 1, lines 23 through
40). Furthermore, neither Hasse’s sanitary napkin nor
Bernardin’s tampon constitutes an adhesive bandage as recited in
claims 5 and 7.
In light of the foregoing, the combined teachings of Hasse
and Bernardin do not justify the examiner’s conclusion that the
differences between the subject matter recited in independent
claims 5 and 7 and the prior art are such that the subject matter
as a whole would have been obvious at the time the invention was
made to a person having ordinary skill in the art. Consequently,
we shall not sustain the standing 35 U.S.C. § 103(a) rejection of
2 Bernardin’s teaching that no scenting oil permeates from
the cavity to the surface of the tampon (see column 2, lines 60
through 63; and column 3, lines 61 through 65) belies the
examiner’s speculation that “[i]t is inherent that the scent may
adhere to the wrapper” (answer, page 6).
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