Ex Parte Zehner et al - Page 11

                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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