Appeal 2007-1323
Application 10/032,701
invention (Igaue 1). Igaue’s diaper may be made from a nonwoven fabric
(Igaue 9). Igaue’s diaper comprises cutting lines extending across at least a
portion of the body panel of the diaper (Igaue 3). Igaue teaches that the
cutting lines are formed by intermittent cuts or perforations (Igaue 3).
According to Igaue, the front body of the diaper may be torn off from the
rear body along the cutting lines allowing the diaper to be easily removed
from the wearer (Igaue 10-11).
In sum, we find that Igaue teaches an absorbent garment, diaper, and
comprises a body panel having a line of weakness extending across at least a
portion thereof as required by claim 11. Igaue’s diaper and Appellants’
diaper may be made of a nonwoven material. While the Examiner
recognizes that Igaue does not teach the specific tear strength set forth in
claim 11 (Answer 4), the Examiner finds that it would have been prima facie
obvious to a person of ordinary skill in the art at the time the invention was
made “to discover the optimum or workable ranges, i.e. Appellant’s claimed
strengths, by routine experimentation . . .” (Answer 5). We agree.
A minor modification of the prior art, such as adjusting the
configuration of the line of weakness to allow the diaper to be easily
removed from the wearer, does not distinguish the claimed product from the
prior art. See KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741, 82
USPQ2d 1385, 1396 (2007) (It is proper to “take account of the inferences
and creative steps that a person of ordinary skill in the art would employ.”).
See also id. at 1742, 82 USPQ2d at 1397 (“A person of ordinary skill is also
a person of ordinary creativity, not an automaton.”). As set forth in In re
Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), “it is not
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