Appeal No. 2005-2531
Application No. 10/148,759
regarding obviousness under 35 U.S.C. § 103. See the legal
authority cited in the brief, most notably Graham v. John Deere
Co., 383 U.S. 1, 17, 148 USPQ 459, 467 (1966). Also see, the
Manual of Patent Examining Procedure (MPEP) § 2141 et seq.
Although the rejections do not clearly state a basis for the
examiner’s conclusion of obviousness, the “Response to Argument”
section of the answer (see pages 3-8) provides some clarity to
this matter. Specifically, in their brief, the appellants argue
that appealed independent claim 1 differs from Fahrenkrug and
Palumbo respectively by requiring that “the nonapertured region
of the repeating unit has substantially the same cross sectional
area everywhere along the repeating unit in a plane that is
parallel to the second direction” and that these references
contain no teaching or suggestion concerning this difference. In
her response to this argument, the examiner argues that the
applied references teach “a spacing of the apertures in the
elastic layer . . . that is a structural equivalent of the
corresponding element disclosed in the specification, [i.e.,] the
repeating unit having substantially the same cross sectional area
everywhere along the repeating [unit]” (answer, page 5 regarding
Fahrenkrug; answer, page 7 regarding Palumbo). The examiner
further elaborates on her position by explaining that “the
4
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