Appeal 2007-2214
Application 10/032,383
We interpret claim 55, which contains substantially identical
language, in the same way. Cf. Fin Control Systems Pty v. OAM, Inc., 265
F.3d 1311, 1318, 60 USPQ2d 1203, 1208 (Fed. Cir. 2001) (“the same terms
appearing in different portions of the claims should be given the same
meaning unless it is clear from the specification and prosecution history that
the terms have different meanings at different portions of the claims”).
2. REFERENCE
The Examiner relies on the following reference:
Keun US 5,386,595 Feb. 7, 1995
3. ANTICIPATION
Claims 3-5, 11-14, 16, 20, 26, 28, 29, 31, 33, 52-55, and 62 stand
rejected under 35 U.S.C. § 102(b) as anticipated by Kuen. The rejection of
claims 3-5, 20, 52-54, and 62 is not challenged (Br. 2). Therefore, we
summarily affirm the rejection of claims 3-5, 20, 52-54, and 62 under 35
U.S.C. § 102.
The Examiner finds that Kuen, in the embodiment depicted in
Figure 7, describes a disposable absorbent article according to claims 11 and
55 (Answer 3-6). With regard to the recitations in claims 11 and 55 that the
first shear strength is greater than the second shear strength, the Examiner
argues that “one can consider a smaller portion of the fastener as [having]
the second shear strength and a larger portion of the fastener as [having] the
first shear strength, thereby meeting the claimed limitations” (id. at 10).
We conclude that the Examiner has set forth a prima facie case of
anticipation. Kuen describes an attachment system for maintaining a
disposable absorbent article “in the crotch region of a wearer” (Kuen, col. 1,
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