Ex Parte Ruman et al - Page 10

                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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