Appeal 2007-2292
Application 10/038,796
skill may not recognize the inherent characteristics or functioning of the
prior art. See id., 801 F.2d at 1326, 231 USPQ at 138.
Thus, it is of no import whether or not Kuen appreciated the results of
using such a stretchable/contractable loop material and substrate so long as
the use thereof in a wearable article fastener would have resulted in the
claimed retraction occurring during the normal use thereof as a wearable
article. See W.L. Gore & Assocs. v. Garlock, Inc., 721 F.2d 1540, 1548, 220
USPQ 303, 309 (Fed. Cir. 1983).
In light of the above, Appellants’ arguments with respect to other
portions of the Kuen disclosure and whether or not these other portions of
the disclosure of Kuen would have explicitly or inherently disclosed the
argued claimed method step are unavailing (Brief 5-9).
Claim 27
Appellants maintain substantially the same arguments against the
Examiner’s anticipation rejection of dependent claim 27 as they do for
independent claim 25 with the same result. Also, Appellants assert that
Kuen does not disclose stretching of the loop material prior to engagement
followed by the subsequent retraction of the loop material after engagement,
as required by claim 27.
We do not consider this additional argument persuasive in that the
normal usage of the third embodiment wearable article of Kuen would have
necessarily included stretching the elastic strap including the expansible loop
material of Kuen in the process of securing the straps and loops thereof to
the hooks on the body of the garment during the donning of the article on a
wearer. In this regard, Appellants’ corollary contention that the Examiner
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