Appeal 2007-2409
Application 10/034,846
the belt 32. …. With regard to the stretchability of the liner
and cover along substantially the entire length and/or width
thereof, or "adjacent" front and back edges of the core, see …
col. 4, lines 43-50, i.e. spaced but yet "adjacent", col. 10, lines
22-52 …, element 30, col. 11, lines 19-39, col. 25, lines 19-45
… i.e. the waist belt can include the cover and liner of the
chassis, the lateral edge in the first waist region as well as the
entire side edges can be elasticized.
(Answer 6-7.)
The standard under § 102 is one of strict identity. "Under 35 U.S.C.
§ 102, every limitation of a claim must identically appear in a single prior art
reference for it to anticipate the claim." Gechter v. Davidson, 116 F.3d
1454, 1457, 43 USPQ2d 1030, 1032 (Fed. Cir. 1997). "Every element of the
claimed invention must be literally present, arranged as in the claim."
Richardson v. Suzuki Motor Co., Ltd., 868 F.2d 1226, 1236, 9 USPQ2d
1913, 1920 (Fed. Cir. 1989).
We do not find the Examiner has established a prima facie case of
anticipation of the claimed subject matter. Appellant argues that Roe fails to
teach a stretchable cover. (Br. 15.) We agree with Appellant that Roe fails
to teach a stretchable outer cover being stretchable in at least one direction,
as claimed.
According to the Specification, “the term ‘stretch,’ or ‘stretchable’
refers to a material that is either elastic or extensible. That is the material is
capable of being extended, deformed, or the like, without breaking, and may
or may not significantly retract after removal of an extending force.”
(Specification 5.) The term "extensible" refers to a “property of a material
where upon removal of an extending force, it provides substantially
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