Appeal 2007-1015
Application 10/011,088
above, Appellants maintain that the leg elastic film material requirement for
at least one of the elastic members as recited in representative claim 33 is
not taught or suggested by the combination of Blenke in view of Widlund
and Newkirk. This is because the Examiner’s reliance on the composite
elastic material of Newkirk as being suggestive of the use of a leg elastic
film material as part of at least one of the elastic members of Blenke is
allegedly misplaced due to the argued absence of a specific disclosure of
using the composite material of Newkirk in that area of an absorbable article
and the added assertion that a composite is not an elastic film material (Br.
15-16; Reply Br. 7-8).
We do not find Appellants’ arguments persuasive of any reversible
error in the Examiner’s obviousness rejection of representative claim 31. In
particular, we note that representative claim 31 employs open “comprising”
language and does not exclude the presence of additional materials, layers,
or other features in the claimed article besides those specifically identified in
claim 31. Thus, Appellants’ arguments as to the difference between a
composite including an elastic film material and an elastic film material are
not found persuasive on this basis alone. Furthermore, even if the rejected
claims excluded the presence of composite materials, we note that the elastic
film component described in Newkirk would have been readily recognized
by one of ordinary skill in the art as a suitable material for use in forming a
leg elastic member of Blenke. In this regard, we note that Blenke teaches
that the leg elastic members (28) can be made from “one or more layers of a
polymeric and/or elastomeric material…” (Blenke, col. 9, ll. 57-65). As
such, Appellants’ arguments respecting this claim feature as patentably
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