Appeal 2007-2292
Application 10/038,796
that the loops and substrate of the third embodiment of Kuen are constructed
so as to be both stretchable and retractable.
In light of our above-noted finding as to the stretchable/retractable
characteristic associated with the loop material and elastic substrate of the
third embodiment of Kuen, we agree with the Examiner that Kuen implicitly
describes a method step corresponding to the claimed contracting step
including contracting a loop component relative to a hook component
following engagement of the fastening components at an engagement seam
wherein the contracting includes contracting of the stretchable loop material
and stretchable substrate. This is so because the normal and usual putting on
or wearing of a wearable article having the fastening components as
described for the third embodiment article of Kuen will necessarily result in
the brought together fastening components, including the stretchable and
retractable loop material and strap, being subjected to varying tensions in
such putting on and wearing of the article that results in the elongation and
contraction of these stretchable/retractable components after the engagement
thereof. In this regard, a prior art reference can anticipate when the claim
limitation or limitations not expressly found in that reference are nonetheless
inherent in it. See In re Oelrich, 666 F.2d 578, 581, 212 USPQ 323, 326
(CCPA 1981); Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631,
2 USPQ2d 1051, 1053 (Fed. Cir. 1987). Under the principles of inherency,
if the prior art necessarily functions in accordance with, or includes, the
claimed limitations, it anticipates. See In re King, 801 F.2d 1324, 1326, 231
USPQ 136, 138 (Fed. Cir. 1986). Inherency is not necessarily coterminous
with the knowledge of those of ordinary skill in the art. Artisans of ordinary
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