Appeal No. 2005-2531
Application No. 10/148,759
spacing of [Fahrenkrug and Palumbo] perform the function, [i.e.,]
the ability to absorb liquids through the openings in the layer
to pull liquid away from the skin surface, as specified by in
[sic] the specification in substantially the same manner as the
function is performed by the corresponding element, [i.e.,] the
repeating unit, described in the specification” (answer, page
5 regarding Fahrenkrug; answer page 7, regarding Palumbo).
Finally and significantly, the examiner acknowledges that “[each
of Fahrenkrug and Palumbo] does fail to teach of [sic] the claim
limitations of claimed invention” but argues that “the apertures
[of these references] are an equivalent function of the repeating
unit provided in the [appellants’ claimed] elastic member”
(answer, page 5 regarding Fahrenkrug; answer, page 7 regarding
Palumbo).
The examiner’s aforequoted rebuttals to argument reflect
that her obviousness conclusion is not based on a proposed
modification of the applied references but instead is based on
the assertion that these references teach an aperture/spacing
arrangement which is structurally and functionally equivalent to
the repeating units of appealed independent claim 1. This
rationale is wholly inadequate to establish a prima facie case of
unpatentability for multiple reasons.
5
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