Appeal 2007-2292
Application 10/038,796
discloses that the elastic strip material includes both non-elastic outer layers
and an inner elastic layer in a stretch laminate (Sommers, col. 9, ll. 8-12).
On this record, we fail to see how the Examiner’s interchangeability
of methods of attachment theory establishes that one of ordinary skill in the
art would conclude that securing the hook and loop elements of the surgical
glove retainer of Sommers would have obviously involved a contracting of a
loop component step performed in the manner required by the claimed
subject matter. Rejections based on § 103(a) must rest on a factual basis
with these facts being interpreted without hindsight reconstruction of the
invention from the prior art. See In re Warner, 379 F.2d 1011, 1017, 154
USPQ 173, 177-78 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968). In
this regard, a rationale basis for the rejection must be presented. See KSR
Int’l. Co. v. Teleflex, Inc., 127 S. Ct. 1727, 1741, 82 USPQ2d 1385, 1396
(2007).
CONCLUSION
On this record, the decision of the Examiner to reject claims 17-19,
25, 27, and 30 under 35 U.S.C. § 102(b) as being anticipated by Kuen is
affirmed, and the decision of the Examiner to reject claims 25 and 27 under
35 U.S.C. § 103(a) as being unpatentable over Sommers is reversed.
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