Appeal 2007-2292
Application 10/038,796
We will not sustain the Examiner’s § 103 rejection because the
obviousness position advanced by the Examiner on this appeal is not
persuasive in discharging the burden of the Examiner to present a prima
facie case of obviousness. This is, in part, because the Examiner has not
fairly articulated where Sommers teaches or suggests a loop component
comprising both a stretchable/contractable substrate and a
stretchable/contractable loop material being contracted in a manner
corresponding to the contraction of these loop component elements as
required by the contracting step of claim 25 (Br. 12-13).
Here, the Examiner has not fairly indicated how Sommers’
conventional loop material attached to the strip or, in the alternative, the
loopy elastic strip material of Sommers would have been used to perform the
claimed contracting method step (see Sommers, col. 7, ll. 3-15). As we
noted above, the Examiner has expressly disavowed reliance on an
inherency theory. However, the Examiner has not furnished any additional
evidence to show how the loops would be formed with the strip material of
Sommers by one of ordinary skill in the art such that the claimed method
would have been obvious within the meaning of § 103.
Even if we take the loop component as a surface of a stretch bonded
laminate as was posited by the Examiner (Answer 5), the rejection remains
unclear because the Examiner does not articulate how one of ordinary skill
in the art would provide such a surface that would constitute both a
stretchable loop material and a stretchable substrate, with both contracting,
in a manner corresponding to appealed claim 25. In this regard, Sommers
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