Bogaerts?Coomans?

Board of Patent Appeals and Interferences

Aug 20, 2008

10857086 (B.P.A.I. Aug. 20, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte
LOES MICHIELSEN, BERT BOGAERTS, and
MICHEL COOMANS
__________

Appeal 2008-2445
Application 10/857,086
Technology Center 3700
__________

Decided: August 20, 2008
__________

Before DONALD E. ADAMS, RICHARD M. LEBOVITZ, and
MELANIE L. McCOLLUM, Administrative Patent Judges.

McCOLLUM, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal under 35 U.S.C. § 134 involving claims to a
fastener. The Examiner has rejected the claims as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
Appeal 2008-2445
Application 10/857,086

INTRODUCTION
The Specification relates to “a stretchable fastener and, more
particularly, to a diaper fastener having an attachment section permanently
anchored to a rear portion of the diaper and a fastening section for selective
attachment to a front portion of the diaper” (Spec. 1: 6-9).
Claims 1-20 are pending and on appeal. Claims 1-3, 5-10, 13, 15-17,
and 19 have not been argued separately and therefore stand or fall together.
37 C.F.R. § 41.37(c)(1)(vii). We will focus on claims 1, 4, 11, 12, 14, 18,
and 20, which read as follows:
1. A fastener comprising:
a first attachment section for permanent attachment to a first surface
of an anchoring area;
a second attachment section for permanent attachment to a second
surface opposite the first surface on the anchoring area;
a landing section for permanent attachment to a landing area;
a fastening section for selective attachment and release from the
landing section; and
a stretchable section between the first attachment section and the
fastening section;
wherein the landing section is releasably attached to the second
attachment section and the fastening section is releasably attached to the
landing section when the fastener is in a pre-installation condition.
4. A fastener as set forth in claim 1, wherein the landing section
comprises mechanical fasteners and the fastening section comprises
mechanical fasteners which mate therewith for selective attachment and
release of the fastening section from the landing section.
11. A fastener as set forth in claim [1, wherein a region of the
elastic section is exposed between the first attachment section and the
fastening section when the fastener is in the pre-installation condition and] a
stick protection pad on the second attachment section is aligned with the
exposed region of the elastic section.
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12. A stable stock roll comprising a substantially long strip of
material which, when laterally cut, provides a plurality of the fasteners set
forth in claim 1, in the pre-installation condition.
14. An article [including a fastener as set forth in claim 1, wherein
the article includes the anchoring area and the landing area, and] wherein the
fastener is in an installation condition whereat:
the first attachment section is permanently attached to a first surface
of an anchoring area of the article and the second attachment section is
permanently attached to a second surface opposite the first surface of the
anchoring area; and
the landing section is releasably attached to the second attachment
section and the fastening section is releasably attached to the landing
section.
18. An article [including a fastener as set forth in claim 1, wherein
the article includes the anchoring area and the landing area,] wherein the
article is a disposable diaper, wherein the anchoring areas are located on
edges of a rear portion of the diaper, and wherein the landing area is located
on a front portion of the diaper.
20. A fastener installed on an article having an anchoring area and
the landing area, said fastener comprising:
a first attachment section for permanent attachment to a first surface
of the anchoring area;
a second attachment section for permanent attachment to a second
surface opposite the first surface on the anchoring area;
a landing section for permanent attachment to the landing area;
a fastening section for selective attachment and release from the
landing section; and
a stretchable section between the first attachment section and the
fastening section;
wherein the first attachment section is permanently attached to a first
surface of an anchoring area of the article and the second attachment section
is permanently attached to a second surface opposite the first surface of the
anchoring area; and
wherein the landing section is releasably attached to the second
attachment section and the fastening section is releasably attached to the
landing section.
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Application 10/857,086

Claims 1-11 and 13-20 stand rejected under 35 U.S.C. § 103(a) as
obvious over Arakawa (EP 0 752 239 A1, Jan. 8 1997) in view of Tritsch
(US 3,930,503, Jan. 6, 1976) (Ans. 3).
Claim 12 stands rejected under 35 U.S.C. § 103(a) as obvious over
Arakawa in view of Tritsch and Panza (US 4,801,480, Jan. 31, 1989)
(Ans. 6).
FINDINGS OF FACT
1. Tritsch discloses “a diaper having an adhesive tab-type fastener
which does not require a release sheet to protect the adhesive surface thereof
and in which the exposed tacky surface of the fastener is removably attached
to the tab itself” (Tritsch, col. 1, ll. 60-64).
2. Tritsch Figure 2 is reproduced below:

This figure depicts a fastening means comprising free terminal portion 15
and fixed terminal portion 16 (fixed to a diaper), the terminal portions being
connected by central segment 17 (id. at col. 2, ll. 41-51).
3. Tritsch discloses that “[r]elease surface 25 is provided on
terminal portion 16 and . . . [p]ressure-sensitive adhesive layer 26 is
provided on free terminal portion 15 and faces in the opposite direction from
release surface 25” (id. at col. 2, ll. 63-68).
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4. Tritsch Figure 3 is reproduced below:

This figure depicts a pre-use condition where “adhesive layer 26 is protected
by removable attachment to release surface 25” (id. at col. 3, ll. 1-3). As
depicted in this figure, an exposed portion of central segment 17 is parallel
to the various layers of terminal portions 15 and 16.
5. Tritsch discloses that the configuration depicted in Figure 3 can
be accomplished by “folding central segment 17 back against diaper outside
surface 11 and then folding free terminal portion 15 back against central
segment 17 so that adhesive layer 26 is in juxtaposition and contacts release
surface 25” (id. at col. 3, ll. 3-8).
6. Tritsch also discloses that central segment 17 is longer than free
terminal portion 15 and, preferably, is “at least about 1.5 times as long as
terminal portion 15” (id. at col. 2, ll. 43-53).
7. In addition, Tritsch discloses attaching a fastener to both sides
of the diaper (id. at Fig. 1).
8. Arakawa describes an expandable fixing tape (Arakawa 2: 23).
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9. Arakawa Figure 10 is reproduced below:

This figure depicts fixing tape comprising a base material “composed of an
expandable portion B formed by a stretch film 7 as the central portion and
substantially non-stretchable portions A1 and A2 composed of a composite
of the stretch film 7 and non-stretchable films 8 at both the end portions
thereof” (id. at 5: 12-14).
10. Arakawa discloses that “on one surface of each of the non-
stretchable portions A1 and A2 is formed each of pressure-sensitive
adhesive layers 2 and on each of the other surfaces is formed each of
releasing agent layers 3” (id. at 5: 14-16).
11. Arakawa also discloses:
on the pressure-sensitive adhesive layer 2 of the non-stretchable
portion A1 is formed a release tape C composed of a base
material 9 having formed on one surface thereof a releasing
agent layer 10 and on the other surface a pressure-sensitive
adhesive layer 11 such that the pressure-sensitive adhesive
layer 2 of the fixing tape . . . is in contact with the releasing
agent layer 10 of the release tape C.
(Id. at 5: 16-19.)
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12. In discussing the embodiment depicted in Figure 1, Arakawa
discloses that the fixing means is preferably pressure-sensitive adhesive
layer 2, but that “other fixing means such as . . . a hook-form fastening
object can be employed” (Arakawa 3: 40-43).
13. Panza describes “composite pre-laminated tapes for forming
closures for disposable diapers” (Panza, col. 2, ll. 10-12).
14. Panza discloses that the tape closures “are advantageously
prepared from a roll of tape comprising a composite elongate strip of
pressure-sensitive adhesive sheet material wound convolutely upon itself
about an annular core” (id. at col. 2, ll. 45-49).
15. Panza also discloses preparing the tape closures “by simply
severing the elongate strip of tape parallel to the axis of the core at intervals
corresponding to the predetermined width of the closure” (id. at col. 2, ll. 49-
53).
OBVIOUSNESS – ARAKAWA AND TRITSCH
Claim 1
Claim 1 is directed to a fastener having, inter alia, a landing section
releasably attached to a second attachment section. The Examiner relies on
Arakawa for teaching most of the limitations of claim 1 (Ans. 3-4). The
Examiner finds that Arakawa describes a “landing section (C) [that] is
capable of being releasably attached to the second attachment section (3, 8,
A[2]) while the fastening section (2, 8, A1) is releasably attached to the
landing section (C),” but that “Arakawa does not expressly disclose that the
device . . . is in this specific pre-installed condition” (id. at 4-5).
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The Examiner relies on Tritsch for teaching “a diaper having a
fastener folded back in such a configuration before use” (id. at 5). The
Examiner concludes that it would have been obvious “to employ the folded
configuration of Tritsch to the device of Arakawa in order to protect the
fasteners during manufacturing and handling” (id.).
Appellants contend that “it would not have been obvious to fold the
Arakawa fixing tape in a Tritsch-like manner as it would require a
substantial (and unobvious) increase in length and, moreover, would cause
the A2 adhesive layer 2 to adhere to the looped strip 7 thereby destroying the
tape’s functionality” (App. Br. 9). Thus, Appellants argue that “the applied
art does not show or suggest a landing section releasably attached to a
second attachment section and a fastening section releasably attached to a
landing section when the fastener is in a pre-installation condition” (id.).
The issue is whether Appellants have shown that the Examiner erred
in concluding that it would have been obvious to employ the folded
configuration of Tritsch to the device of Arakawa to releasably attach
adhesive layer 11 of release tape C (“the landing section”) to releasing agent
layer 3 of non-stretchable portion A2 (“the second attachment section”).
We agree with the Examiner that Appellants have not shown that the
Examiner erred. The fastener depicted in Arakawa’s Figure 10 has an
exposed adhesive layer 11 on release tape C (Findings of Fact (FF) 9 & 11).
The fastener also has a releasing agent layer 3 on non-stretchable portion A2
(FF 9-10). Tritsch describes folding a fastener such that an adhesive layer of
the fastener is protected by removable attachment to a release surface of the
fastener (FF 4-5). Based on this disclosure, we agree with the Examiner that
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it would have been obvious to fold Arakawa’s tape by the technique
described in Tritsch to releasably attach adhesive layer 11 to the A2
releasing agent layer 3 in order to protect adhesive layer 11.
In particular, Tritsch teaches that central segment 17 is longer than
free terminal portion 15 and, preferably, is “at least about 1.5 times as long
as terminal portion 15” (FF 6). In order to utilize Tritsch’s folding
technique, we agree with the Examiner that it would have been obvious to
provide Arakawa’s central portion 7(B) with sufficient length to allow the
tape to be folded in this way.
In addition, we do not agree with Appellants that folding Arakawa’s
fixing tape in the Tritsch-like manner would cause the A2 adhesive layer 2
to adhere to the looped strip 7. Instead, we find that Arakawa’s fastener
could be folded in the opposite direction to the manner depicted on page 8 of
the Appeal Brief by moving adhesive layer 11 in the clockwise direction
towards the A2 releasing agent layer 3. By moving adhesive layer 11 in the
clockwise direction towards the A2 releasing agent layer 3, adhesive
layer 11 could be releasably attached to the A2 releasing agent layer 3 while
the A2 adhesive layer 2 remains exposed and therefore not adhered to film 7
(see Arakawa, Fig. 10).
Claim 4
Claim 4 requires that the landing section and the fastening section
each comprises mechanical fasteners that mate with each other. The
Examiner finds that Arakawa teaches mechanical fasteners (Ans. 5).
Appellants argue that the passage of Arakawa cited by the Examiner
“is directed towards the Z-folded embodiment of the Arakawa tape shown in
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Figure 1 which does not include a landing section” (App. Br. 10). Thus,
Appellants argue that this teaching “does not show or suggest using
mechanical fasteners for selective attachment and release of a fastening
section from a landing section” (id.).
The issue is whether Appellants have shown that the Examiner erred
in concluding that it would have been obvious to attach Arakawa’s release
tape C (“the landing section”) to fixing tape portion A1 (“the fastening
section”) with mechanical fasteners.
We agree with the Examiner that Appellants have not shown that the
Examiner erred. Arakawa discloses that hook-form fastening is a known
alternative to using an adhesive layer (FF 12). Although Arakawa does not
describe using hook-type fastening to attach release tape C to portion A1 of
the fixing tape depicted in Arakawa Figure 10, we agree with the Examiner
that it would have been obvious. Cf. KSR Int’l v. Teleflex Inc., 127 S. Ct.
1727, 1739 (2007) (“The combination of familiar elements according to
known methods is likely to be obvious when it does no more than yield
predictable results.”).
Claim 11
Claim 11 requires a stick protection pad on the second attachment
section that is aligned with an exposed region of the elastic section.* The
Examiner finds that “Arakawa teaches a stick protection pad (3) on the

* Claim 11, as well as claim 10 on which claim 11 depends, refers to “the
elastic section.” However, claim 1 on which claim 10 depends does not
recite “an elastic section.” For the purpose of this appeal, we are
interpreting “the elastic section” to refer to the “stretchable section” of
claim 1.
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Application 10/857,086

second attachment portion (3, 8, A2)” (Ans. 6). The Examiner also finds
that, “when the fastener of Arakawa is folded in the Tritsch-like manner, the
A2 release surface (3) is aligned perpendicularly to and parallel to exposed
regions of the elastic section (7)” (id. at 8).
Appellants argue that “the Arakawa A2 release surface 3 . . . is not
aligned with an exposed region of an elastic section when folded in a
Tritsch-like manner” (App. Br. 10).
The issue is whether Appellants have shown that the Examiner erred
in concluding that Arakawa’s A2 releasing agent layer 3 (“the stick
protection pad”) would be aligned with an exposed region of central
region 7(B) (“the elastic section”) when the tape is folded in a Tritsch-like
manner.
We agree with the Examiner that Appellants have not shown that the
Examiner erred. As depicted in Tritsch, an exposed portion of central
segment 17 is parallel to the various layers of terminal portions 15 and 16
(FF 4). Similarly, when Arakawa’s tape is folded in a Tritsch-like manner,
we find that an exposed portion of central portion 7(B) would be parallel to,
and therefore aligned with, the A2 releasing agent layer 3.
Claim 14
Claim 14 is directed to an article including a fastener of claim 1, the
fastener having a landing section releasably attached to a second attachment
section. The Examiner finds that “Tritsch teaches a diaper (10) having
anchoring and landing areas. The combined teachings of Tritsch and
Arakawa would provide for a diaper fastener that can be unfolded and
attached to landing areas on the other side of the diaper.” (Ans. 6.)
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Appellants argue that, “in order for the Tritsch-folded Arakawa fixing
tape to be installed, the A2 part of the tape would need to be removed from
the landing section C in order to expose adhesive layer 11” (App. Br. 10).
Thus, Appellants argue that, “in an installation condition, the Tritsch-folded
Arakawa fixing tape would not have a landing section releasably attached to
an A2 ‘attachment section’” (id.).
The issue is whether Appellants have shown that the Examiner erred
in concluding that the combined teachings of Arakawa and Tritsch would
have rendered obvious an article including a fastener in which Arakawa’s
adhesive layer 11 of release tape C (“the landing section”) is releasably
attached to releasing agent layer 3 of portion A2 (“the second attachment
section”).
We agree with the Examiner that Appellants have not shown that the
Examiner erred. As discussed above, we agree with the Examiner that it
would have been obvious to fold Arakawa’s tape by the technique described
in Tritsch to releasably attach adhesive layer 11 to the A2 releasing agent
layer 3 and that, in this configuration, Arakawa’s A2 adhesive layer 2 would
be exposed. Tritsch discloses a fastener in a folded configuration where a
terminal portion is attached to a diaper (FF 2-5). Based on this disclosure, it
would have been obvious to attach Arakawa’s tape to a diaper while the tape
is in the folded configuration described above. Because the A2 adhesive
layer 2 remains exposed when the tape is folded, by attaching the fastener to
the diaper via the A2 adhesive layer 2, it would not be necessary to unfold
the tape in order to fasten it to the diaper.
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Appeal 2008-2445
Application 10/857,086

Claim 18
Claim 18 is directed to a disposable diaper including a fastener of
claim 1, wherein “anchoring areas are located on edges of a rear portion of
the diaper.” The Examiner finds:
Tritsch shows a diaper (10) incorporating attachment sections
(17, 19) at a side end edge that may attach to corresponding
side end edges at the longitudinally opposite end of the diaper.
Either end can be construed as . . . the front or rear portion of
[the] diaper depending on how it might be oriented relative to a
wearer of the diaper.
With the combined references, the anchoring area of
Arakawa (7) would be attached to on[e] side end edge of a
diaper such as that of Tritsch and the landing portion of
Arakawa would be located on the side end edge at the
longitudinally opposite end of the diaper when it is in an
assembled condition as shown in Tritsch figure 4.
(Ans. 10.)
Appellants argue that “the applied art does not show or suggest
attachment sections attached to opposite surfaces of [a] rear edge of a
diaper” (App. Br. 11). In particular, Appellants argue:
[T]he Examiner’s rejection rests on the Arakawa strip 7 (part of
the fixing tape itself) constituting “the anchoring area” so that
the release layers 3/8 and adhesive layers 2/8 can be considered
“attachment sections” attached to opposite surfaces of this
anchoring area. As such, the Arakawa anchoring area cannot be
located on a rear edge of the diaper and/or the Arakawa
attachment sections cannot be attached to opposite surfaces of
the rear edge of the diaper.
(Id.)
The issue is whether Appellants have shown that the Examiner erred
in concluding that the combination of Arakawa and Tritsch renders obvious
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Application 10/857,086

an article wherein anchoring areas are located on edges of a rear portion of
the diaper.
We agree with the Examiner that Appellants have not shown that the
Examiner erred. As discussed above, it would have been obvious to attach
the exposed A2 adhesive layer 2 to a diaper while the fastener is in the
folded configuration. Tritsch discloses attaching a fastener to both sides of
the diaper (FF 7). Based on this disclosure, we agree with the Examiner that
it would have been obvious to attach a folded fastener to each side of the
rear portion of the diaper, on edges of the rear portion. By attaching the A2
adhesive layer 2 of each folded fastener on an edge of the rear portion of the
diaper, the article, which includes the fasteners, has anchoring areas (that is,
strip 7 from each fastener) “located on edges of a rear portion of the diaper,”
as recited in claim 18.
Claim 20
Claim 20 is directed to a fastener installed on an article, the fastener
having, inter alia, a landing section releasably attached to a second
attachment section. The Examiner finds that “Tritsch teaches a diaper (10)
having anchoring and landing areas. The combined teachings of Tritsch and
Arakawa would provide for a diaper fastener that can be unfolded and
attached to landing areas on the other side of the diaper.” (Ans. 6.)
Appellants argue that “it would not have been obvious to fold the
Arakawa fixing tape in a Tritsch-like manner as it would require a
substantial (and unobvious) increase in length and, moreover, would cause
the A2 adhesive layer 2 to adhere to the looped strip 7, thereby destroying
the tape’s functionality” (App. Br. 12).
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Application 10/857,086

The issue for this claim is the same as the issue for claim 1. We agree
with the Examiner that Appellants have not shown that the Examiner erred
for the reasons discussed above with regard to claim 1.
Summary
We conclude that the Examiner has set forth a prima facie case that
claims 1, 4, 11, 14, 18, and 20 would have been obvious over Arakawa in
view of Tritsch, which Appellants have not rebutted. We therefore affirm
the rejection of claims 1, 4, 11, 14, 18, and 20 under 35 U.S.C. § 103(a).
Claims 2, 3, 5-10, 13, 15-17, and 19 fall with claim 1.
OBVIOUSNESS – ARAKAWA, TRITSCH, AND PANZA
Claim 12 is directed to a stable stock roll comprising a strip of
material that, when laterally cut, provides a plurality of fasteners of claim 1.
The Examiner relies on Arakawa and Tritsch for the features of claim 1
(Ans. 6). The Examiner relies on Panza for teaching “a stock roll of
laminated tape” (id.). The Examiner concludes that it would have been
obvious “to manufacture the fastener of Arakawa and Tritsch in a stock roll
in order to facilitate manufacturing and transport” (id. at 7).
Appellants argue that “the applied art does not appear to provide any
indication that the Arakawa tape or Tritsch tab could or should be produced
as a stock roll, and/or that such production would facilitate manufacturing/
transport” (App. Br. 11). Appellants also argue that, “even if it was obvious
(in hindsight) to provide stock for the Arakawa fixing tape or the Tritsch
fastening tape in the form of a roll, the stock roll would not provide a
plurality of the fasteners in the specified pre-installation condition. . . .
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Panza does not overcome the shortcomings of Arakawa and Tritsch.” (Id. at
11-12.)
We have already concluded that the combination of Arakawa and
Tritsch renders claim 1 obvious. Therefore, the only issue is whether
Appellants have shown that the Examiner erred in concluding that it would
have been obvious to produce fasteners of claim 1 in a stock roll.
We agree with the Examiner that Appellants have not shown that the
Examiner erred. Panza discloses “a roll of tape comprising a composite
elongate strip of pressure-sensitive adhesive sheet material wound
convolutely upon itself about an annular core” and severing the elongate
strip of tape to form composite closures for disposable diapers (FF 13-15).
“[A]ny need or problem known in the field of endeavor at the time of
invention and addressed by the patent can provide a reason for combining
the elements in the manner claimed.” KSR Int’l v. Teleflex Inc., 127 S. Ct.
1727, 1742 (2007). The Examiner concludes that it would have been
obvious “to manufacture the fastener of Arakawa and Tritsch in a stock roll
in order to facilitate manufacturing and transport” (Ans. 7). Appellants have
not shown that this conclusion is incorrect.
We conclude that the Examiner has set forth a prima facie case that
claim 12 would have been obvious over Arakawa in view of Tritsch and
Panza, which Appellants have not rebutted. We therefore affirm the
rejection of claim 12 under 35 U.S.C. § 103(a).
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CONCLUSION
The Examiner’s position is supported by the preponderance of the
evidence of record. We therefore affirm the rejections of claims 1-20 under
35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

cdc

Cynthia S. Murphy
Renner, Otto, Boisselle & Sklar, LLP
1621 Euclid Avenue, Nineteenth Floor
Cleveland OH 44115-2191
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