Appeal No. 2006-1309
Application No. 09/166,625
art within the meaning of § 103 for the reasons articulated by
the examiner and set forth in our decision.
Appellant takes issue with our statement at page 5 of the
Decision that "appellant has not attached any criticality to
the claimed thickness, and the disclosed preference for the
claimed thickness would seem to allay any suggestion of
criticality . . ." Appellant notes the specification disclosure
at page 10 that the non-woven layer preferably has a thickness
in the range of 1-2 mils to gain the advantage of absorbing and
laterally dispersing fluid. However, a stated preference is not
tantamount to establishing criticality. As noted in our
Decision, appellant based no argument upon unexpected results
attached to the claimed thickness for the first layer.
Concerning the error in Garland's disclosure of the
thickness of the non-woven layer, we stated in our Decision that
"appellant has not refuted the examiner's calculations by
pointing to any error therein but has simply offered a bald
challenge to the calculations" (page 5 of Decision). Appellant
belatedly now comes with a response discussing disclosures in
Blackburn, Duncan, and Marquart. However, inasmuch as this line
of argument was not present in appellant's principal or reply
briefs, it is untimely and not properly before us. In any
-2-
Page: Previous 1 2 3 4 5 Next
Last modified: November 3, 2007