Appeal No. 2004-0645
Application 09/194,968
The last rejection for our review is that of claims 1
through 14 under 35 U.S.C. § 102(b) as being anticipated by
Bergman. For the reasons aptly set forth by appellants on pages
31-42 of their brief, we agree with appellants’ assessment that
Bergman, even with consideration of the patents to Buell ‘092 and
Kopp, does not anticipate the absorbent garment defined by
appellants in claims 1 through 14 on appeal. The examiner’s
apparent position (answer, page 9) that since Bergman
incorporates the teachings of Buell ‘092 and Kopp “the Bergman et
al device could also employ a second fastener device as taught by
Buell and Kopp, i.e. the fastener device 14 could be part of or
attached to at least a portion of the inner surface or topsheet
with the length which is transverse to the first attachment
device being the major length” (emphasis added), is wholly
inappropriate in this anticipation rejection and at best
represents a classic example of hindsight reconstruction based on
selective application of disparate teachings found in a variety
of references, based on appellants’ own disclosure. Thus, we will
not sustain the examiner’s rejection of claims 1 through 14 under
35 U.S.C. § 102(b) based on Bergman.
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