Appeal 2007-1596
Application 09/996,707
foam padding to inhibit the growth of bacteria was known in the prior art?;
and (4) Has the Examiner identified proper reasons for combining these
known elements in the manner claimed?
We determine that the Examiner has not established a prima facie case
of lack of written description essentially for the reasons stated in the Brief,
Reply Brief, and for those reasons set forth below. Therefore, we
REVERSE the rejection of claim 7 under the first paragraph of § 112.
We determine that the Examiner has established a prima facie case of
obviousness in view of the reference evidence, which prima facie case has
not been adequately rebutted by Appellant’s arguments. Therefore, we
AFFIRM all grounds of rejection based on § 103(a) essentially for the
reasons stated in the Answer, as well as those reasons set forth below.
The decision of the Examiner is thus AFFIRMED.
OPINION
A. The Rejection under § 112, ¶1
The Examiner finds that the Specification discloses that the purpose of
the vinyl layer (810) is to provide abrasion resistance and thus there does not
appear to be support for the recitation in claim 7 that the vinyl layer reduces
the absorption of moisture by the foam padding (Answer 3, citing the
Specification 9:17-27).
An ipsis verbis disclosure is not necessary to satisfy the written
description requirement of section 112. Instead, the disclosure need only
reasonably convey to persons skilled in the art that the applicant had
possession of the subject matter in question as of the filing date of the
application. See In re Edwards, 568 F.2d 1349, 1351-52, 196 USPQ 465,
467 (CCPA 1978); Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563, 19
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