Ex Parte 6428526 et al

Board of Patent Appeals and Interferences

Feb 24, 2010

90006775 (B.P.A.I. Feb. 24, 2010)

1
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte KIMBERLY-CLARK WORLDWIDE, INC.1
Appellant

Appeal 2009-010313
Reexamination Control 90/006,775
Patent No. 6,428,5262
Technology Center 3700
____________________

Decided: February 24, 2010
____________________

Before JENNIFER D. BAHR, ROMULO H. DELMENDO, and KARL D.
EASTHOM, Administrative Patent Judges.

EASTHOM, Administrative Patent Judge.

DECISION ON APPEAL

1 Kimberly-Clark Worldwide, Inc. is the real party in interest and Patent
owner.
2 The patent under reexamination [hereinafter the “‘526 Patent”], issued
(Aug. 6, 2002) to Timothy Raymond Heindel, Tim Joseph Janssen, Scott
Lee Pennings, Gary Mack Reynolds, Paul John Serbiak, Bruce Michael
Siebers, Robert Eugene Vogt, and Georgia Lynn Zehner. The patent is
based on Application No. 08/834,777 (filed Apr. 3, 1997), with continuity
indicated on the patent to extend to Application No. 08/335,527 (filed Nov.
7, 1994).
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Appellant appeals under 35 U.S.C. §§ 134(b) and 306 from a Final
Rejection of claims 1-3 and 7-11.3 (See App. Br. 2.) We have jurisdiction
under 35 U.S.C. §§ 134(b) and 306.
We affirm.
STATEMENT OF THE CASE
This reexamination proceeding arose from a third-party request for ex
parte reexamination filed by Dechert, LLP, c/o Arthur E. Jackson, on
September 12, 2003. After a Final Rejection (mailed Sept. 2, 2004),
Appellant appealed to the Board of Patent Appeals and Interferences. The
Board, under a different panel than the instant panel, reversed the
Examiner’s rejection of claims 1-11, entered a new ground of rejection for
those claims, and affirmed the rejection of claims 12-22. Ex parte Heindel,
Appeal No. 2007-0724 (BPAI. June 20, 2007) [hereinafter the “ ‘724
Decision”]. Thereafter, Appellant amended independent claims 1 and 7 and
cancelled claims 4-6, and the Examiner finally rejected claims 1-3 and 7-11,
giving rise to this appeal.
The Disclosed Invention
Appellant discloses a package of diapers, wherein each diaper has a
hook-and-ladder type mechanical fastener releasably engaged with an elastic
material on the diaper. The diapers are disposed in a pant-like configuration.
(See ‘526 Patent, col. 4, ll. 59-65, col. 9, ll. 38-64, Abstract, Fig. 8.)

3 This opinion refers to the Final Rejection (mailed July 2, 2008)(“Fin.
Rej.”), the Examiner’s Answer (mailed Feb. 23, 2009)(“Ans.”), the Appeal
Brief (filed Jan. 14, 2009) (“App. Br.”), and the Reply Brief (filed March 30,
2009) (“Reply Br.”).
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The Claim
Appellant’s arguments focus on independent claim 1. (App. Br. 3-6.)
Accordingly, pursuant to 37 C.F.R. § 41.37(c)(1)(vii), claim 1 is selected to
represent the claims on appeal. Claim 1 follows:
1. A package of disposable absorbent articles comprising a
plurality of said disposable absorbent articles wherein each of
said disposable absorbent articles includes an outer cover, a
bodyside liner, an absorbent core disposed between said outer
cover and said bodyside liner, and at least one hook-and-loop
type mechanical fastener which comprises a hook material
which includes a base sheet and stemlike projections extending
from said base sheet, said stemlike projections being releasably
engaged with an elastic material on said disposable absorbent
article to protect said hook material and provide a pant-like
structure before said disposable absorbent article is packaged.
(App. Br. Claims Appendix)4
Prior Art and Rejections
The prior art relied upon by the Examiner in rejecting the claims
follows:5
Shytles 5,125,246 Jun. 30, 1992
Roessler 5, 176,670 Jan. 5, 1993
Caldwell 5,462,540 Oct. 31, 1995

4 The underlined portion was added by Appellant (Amendment received
Apr. 28, 2008) subsequent to the new ground of rejection entered by the
previous panel.
5 The Examiner also cited two different references to Ruchstuhl. (See e.g.
Ans. 4.). The Ruchstuhl references are not germane to this appeal and are
not listed here.
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The Examiner also employed two evidentiary references, the “Textile
Technology” reference, and the “Merriam-Webster OnLine Thesaurus.”
(See e.g. Ans. 4.) The dates of these references (and their teachings) are not
in dispute, so that further information is omitted here for brevity.
The Examiner rejected claims 1-3 and 7-11 under 35 U.S.C. § 112,
second paragraph, as indefinite.
The Examiner rejected claims 1-3 and 7-11 under 35 U.S.C. § 103(a)
as obvious based on Caldwell and Roessler. The Examiner also employed
the evidentiary references (i.e., the Textile Technology reference, and the
Merriam-Webster OnLine Thesaurus).
The Examiner rejected claims 1-3 and 7-11 under 35 U.S.C. § 103(a)
as obvious based on Caldwell, Roessler, and Shytles.
ISSUES
Appellant’s contentions with respect to the Examiner’s stated
positions present the following issues:
1. Did the Examiner err in finding claim 1 indefinite under the second
paragraph of 35 USC 112?
2. Did the Examiner err in finding that Caldwell and Roessler render
obvious a hook-and-ladder type mechanical fastener releasably engaged with
an elastic material on the disposable absorbent article, as set forth in claim
1?
3. Did the Examiner err in finding that Caldwell, Roessler, and
Shytles render obvious a hook-and-ladder type mechanical fastener
releasably engaged with an elastic material on the disposable absorbent
article, as set forth in claim 1?
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FINDINGS OF FACT
The ‘724 Decision
1. In the prior Board decision, with respect to Caldwell and Roessler,
the panel found the following facts which Appellant does not dispute and
which are hereby adopted:
The diaper assembly of Caldwell has first and second ends, 12
and 14. The diaper has a moisture-pervious inner layer 16, an
absorbent pad 18, and a moisture-impervious outer layer 20.
Caldwell, col. 4, I1.22-29. The diaper includes a double-coated
adhesive fastener assembly 26 attached at each lateral side of
the first end. Caldwell, col. 4, 11.46-56. In use, the adhesive
fastener 26 engages a fastener-receiving tape 40 which is
attached to the outer layer at the second end. Caldwell, col. 7,
ll. 11-24. Caldwell discloses that a number of diapers may be
packaged together in this configuration.
Caldwell, col. 8, ll. 14-34.
(‘724 Decision 6:11-19.)
Roessler recognizes that an adhesive tab has
disadvantages. For example, repeated reopening and reclosing
of a diaper having an adhesive tab may result in tearing the
outer cover of the diaper or contaminating the adhesive with
baby powder, oil, or the like. Roessler, col. 1, 11.25-39.
Roessler discloses a hook-and-loop fastener which is
capable of refastening a diaper securely five or more times and
is able to resist contamination that would affect its function as a
fastener. Roessler, col. 2, ll. 9-20 and 48-54.

(‘724 Decision 6:23 to 7:6.)
Based on these facts, the panel found that “one of ordinary skill in the
art would have been motivated to modify the adhesive fastening means in
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Caldwell with hook-and-loop fastening means for the reasons disclosed in
Roessler.” (‘724 Decision 14:1-3.)
Roessler
2. Roessler discloses “a hook and loop mechanical fastener system,
such as a Velcro[TM]-style fastener, specifically developed for disposable
garments, in particular[,] disposable diapers and incontinent garments.”
(Col. 2, ll. 9-12.)
The “[l]oop material is applied onto the front waistband portion 12 in
a patch or swatch 35 with the loops erect and facing outwardly form the face
of the back sheet 11 (FIG. 4). The extent of patch 35 may be varied and may
take one of several geometric shapes, such as rectangular, irregular shaped,
diamond . . . or the like.” (Col. 7, ll. 45-51.)
“Patch 35 is fastened on the exterior surface of the back sheet 11 by
known techniques, such as hot melt adhesive patterned onto the surface in
dots, strips or bars, or fastened by heat bonding.” (Col. 7, l. 66 to col. 8, l.
2.) The loop fabric is in a “warp knit construction.” (Col. 7, ll. 34-35.)
3. In the embodiment depicted in Figure 14: “A waist elastic member
(not shown) may be arranged to shirr the front waistband 12.” (Col. 11, ll.
4-6.) “The hooks of the hook material extend in the direction of the body of
the wearer to be attached on the patch 46 of loop material adhesively
connected on the outside surface of backsheet 11 at the front waistband 12.”
(Col. 11, ll. 15-19.)
4. During storage of the diaper, in the embodiment depicted in Figure
6, Roessler discloses placing hooks 31 facing a topsheet 21 and lightly
attached thereto, “i.e. the hooks are exposed to lightly grip the topsheet
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material 21 when the diaper is packaged prior to use.” (Col. 9, ll. 25-27.)
The top sheet 21 can be either elastic or inelastic. (Col. 4, ll. 40-42.)
5. Roessler discloses an example of “the backsheet layer 11” as “a
liquid-impermeable substantially inelastic material, such as a polymer film.”
(Col. 4, ll. 21-22.) Roessler also discloses another example of the layer 11
as a “nonwoven fibrous web [that] may be stretchable.” (Col. 4, l. 34.)
Shytles
6. Shytles discloses “a narrow knitted fabric providing an elastic band
or fabric zone that is receptive to the hook portion of a VELCROTM hook
and loop fastening system . . . for health care products, such as incontinent
garments where hook and loop fastening is desired.” (Col. 1, ll. 54-60.)
“The loops can be regulated in height and spacing and are locked in
the fabric so that they may serve as the loop portion of a hook and loop
fastener.” (Col. 1, ll. 34-47.)
“The knitted structure allows for considerable lengthwise extension
when stressed and the elastomer gives the recovery to the fabric upon relief
of stress.” (Col. 1, ll. 28-31.)

PRINCIPLES OF LAW
“[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting a prima facie case of unpatentability.” In
re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Appellant has the burden
on appeal to present arguments explaining how the Examiner has erred.
Arguments not presented are deemed waived. See id.; 37 C.F.R.
§ 41.37(c)(1)(vii).
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Under § 112, second paragraph, claims must be “sufficiently definite
such that those skilled in the art would understand what is being claimed
when the claim is read in light of the Specification.” Ex parte Miyazaki, 89
USPQ2d 1207, 1213 (BPAI 2008) (precedential), available at
http://www.uspto.gov/web/offices/dcom/bpai/prec/fd073300.pdf., at *16.
Claims cannot be inconsistent with the Specification: “It is evident to us
from the above summary of the description, definitions and examples
appearing in appellant’s specification, that the claims on appeal are
inherently inconsistent. . . .The result is an inexplicable inconsistency within
each claim requiring that the rejection under 35 U.S.C. 112 on grounds of
indefiniteness be sustained.” In re Cohn, 438 F.2d 989, 993 (CCPA 1971).
A determination of obviousness can be based on a showing that “there
was an apparent reason to combine the known elements in the fashion
claimed . . . .” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
ANALYSIS
Ground 1- The 35 U.S.C § 112 Rejection based on Indefiniteness
The Examiner rejected claims 1-3 and 7-11 as indefinite for failing to
particularly point out and distinctly claim the subject matter which applicant
regards as the invention. Addressing claim 1, the Examiner asked the
following question: “Are the loop of the hook and loop mechanical fastener
and the elastic material one and the same, i.e., at a minimum, how many
portions do the projections releasably engage /fasten with?” (Fin. Rej. 3;
Ans. 3.) Appellant responded, in part, as follows:
The claim language of “hook-and-loop type mechanical
fastener” is merely a description of the type of mechanical
fastener required by the invention of independent claim 1; it is
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not a requirement that the fastener have a “loop material.”
While the invention of independent claim 1 may have a hook-
and-loop type mechanical fastener that includes a loop material
that is the same as the elastic material, not every embodiment of
the invention is required to have that construction.

(App. Br. 4.)
The Examiner also reasoned that “it is not clear whether the loop of
the hook and loop mechanical fastener and the elastic material as claimed
are one and the same at a minimum.” (Ans. 8.)
In the “Summary of Claimed Subject Matter” section of the Brief,
Appellant points, inter alia, to the Specification6 at page 15, lines 15-17 as
providing support for the recitation of “releasably engaged with an elastic
material” in claim 1. (App. Br. 2.) That portion of the Specification states:
“The hook material 40 may be releasably engaged with the disposable diaper
20 or any component of the disposable diaper 20 by any suitable process
such as that representatively illustrated in Fig. 9.” (Spec. 15: 15-17.) The
Specification also indicates that the outer cover of the diaper may be formed
of a may be formed of elastic material, and/or woven or non-woven web
material. The cover may include a web material laminated to it. (Spec. 7: 3-
27.)
Figure 9, and its accompanying text, describe hook material folded
over and embedded in a web 52 such that the stemlike projections of the
hook material are “releasably engaged” in the web 52. (Spec. 13: 5-8.)
Under these circumstances, apparently, the web 52 behaves as loops of

6 Reference is to the original Specification to the ‘526 Patent, Application
No. 08/834,777 (filed April 3, 1997).
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engagement. In other words, in terms of claim 1, the web 52 functions as, or
constitutes, a “loop-type,” of the “hook-and-loop type mechanical fastener”
of claim 1.7
Appellant argues as follows: “Even if (for the sake of argument) the
‘hook-and-loop type mechanical fastener’ is required to include a ‘loop
material,’ the fact that a ‘loop material’ is not specifically called out does not
render the claim indefinite.” (Reply Br. 2.) As Appellant argues, recited
elastic material (e.g., the disclosed web), is not necessarily, a “loop
material.” However, notwithstanding any implied arguments to the contrary,
the recited elastic material, according to claim 1, implicitly at least contains,
carries, constitutes, or comprises, a “loop-type” material. That is, this loop-
type material (e.g., web or loops attached to the web or other material, etc.)
provides a releasable engagement with the stemlike projections, as claim 1
requires.
Based on the foregoing discussion, the Specification provides,
consistent with claim 1, “stemlike projections being releasably engaged with
an elastic material on said disposable absorbent article.” Notwithstanding
the Examiner’s concern, as Appellant argues, the claim is not indefinite
merely because it not specifically recite that the elastic material is a “loop
material,” or recite the number of engaging portions.
In other words, claim 1 does not contain the sort of “inexplicable
inconsistency” with the Specification as prohibited by Cohn, 438 F.2d at
993. In light of the Specification, claim 1 is “sufficiently definite such that

7 In a similar fashion, Roessler discloses lightly adhering hooks into a fabric
that is not described as containing loops. (Infra, FF 4.)
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those skilled in the art would understand what is being claimed when the
claim is read in light of the Specification.” Ex parte Miyazaki, 89 USPQ2d
at 1213.
For the foregoing reasons, Appellant has persuaded us that the
Examiner erred in the rejection of claim 1, and claims 2-3 and 7-11, based
on indefiniteness.
Ground 2- Rejection of claims 1-3 and 7-12 based on Roessler and
Caldwell
The Examiner rejected these claims based, inter alia, on evidentiary
teachings in the Textile Technology and the Thesaurus references. The
Examiner used the references as “collaborating evidence only” (Ans. 9) to
establish the fact that knitted fabrics are inherently elastic. (See Ans. 5, 9.)
The Examiner pointed to Roessler’s knitted fabric loop material, as
satisfying “an elastic material on said disposable absorbent article to protect
said hook material,” as required by claim 1. (Ans. 5 (Roessler’s “disclosed
hook and loop fastener includes knitted fabric which forms a pile of loops
which loops releasably engage with the hook material and comprise a
portion of the outer cover”).)
In response, Appellant contends that the Thesaurus reference and the
Textile Technology references “are not available as prior art.” (App. Br. 4.)
This response is unpersuasive. It is well-settled that references cited to show
a fact need not be available as prior art. In re Wilson, 311 F.2d 266 (CCPA
1962).
While Appellant acknowledges, in reply, that the Examiner relied on
the two references “for disclosure of a ‘knitted fabric’ being ‘elastic’,”
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Appellant also responds that the Examiner used the two evidentiary
references to show prior art elements. (Reply Br. 2.) The latter part of the
statement contradicts the former, and in any case, Appellant does not
identify any such prior art elements. Appellant also does not challenge the
substantive aspects of the Examiner’s factual findings showing the inherent
elasticity of knitted fabrics in Roessler based on the two evidentiary
references. Therefore, this line of reasoning fails to demonstrate error.
Appellant also asserts that the Examiner failed to make out a prima
facie case of obviousness, noting that “the claimed invention taken as a
whole cannot be said to be obvious without some reason given in the prior
art why one of ordinary skill would have been prompted to modify the
teachings . . . .” (App. Br. 4.) This statement, describing, in general, the
legal requirements to establish obviousness, is unpersuasive because it does
not address the particular reasons set forth by the Examiner (Ans. 4-5, 9), it
does not even allege that the Examiner does not include reasons from the
prior art, and finally, it improperly states that any reasons for combining
references must be found in the prior art. See KSR, 550 U.S. at 418-19
(apparent reasons, not necessarily in the cited art, sufficient to establish
obviousness).
For the foregoing reasons, we detect no reason to disturb the
Examiner’s rejection of claim 1, or of claims 2-3 and 7-11, based on
Caldwell and Roessler. See 37 C.F.R. § 41.37(c)(1)(vii); In re Nielson, 816
F.2d 1567, 1569, 1572 (Fed. Cir. 1987) (Dependent claims, not argued
separately, fall with the independent claim.).

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Ground 3- Rejection of claims 1-3 and 7-12 based on Caldwell,
Roessler, and Shytles
The Examiner found that Caldwell “discloses a diaper, i.e., an
incontinent device” having adhesive fastening means “which may be
engaged to provide a pant-like structure. . . . Caldwell discloses that a
plurality of diapers may be packaged together in this pant-like
configuration.” (Ans. 6.) The Examiner effectively proposed replacing
Caldwell’s adhesive fasteners (FF 1) with Roessler’s hook and loop
fasteners (e.g. VELCROTM) (FF 1-3) as modified by Shytles’s elastic fabric
loop fasteners (FF 6), while noting that the fasteners described in each
reference were used in incontinent devices (i.e., diapers). (Ans. 6-7.)
The Examiner also pointed to Roessler’s teachings concerning the
advantages of employing hook and loop type fasteners over adhesive type
fasteners such as those of Caldwell. (Ans. 6; accord FF 1.) The Examiner
also reasoned that skilled artisans would have replaced Caldwell’s hook and
loop fastener with Shytles’s elastic hook and loop fastener “for the reasons
disclosed in Roessler” and because “two equivalents are interchangeable for
the desired function.” (Ans. 7 (citation omitted).)
Appellant advances two arguments against this particular rejection.
First, Appellant states that because Caldwell does not teach any “desirability
of elastic fastening means,” the Examiner’s statement is conclusory, without
the requisite articulation. (App. Br. 5.) This argument is unavailing because
there is no requirement for Caldwell to teach the desirability of elastomeric
fasteners. The Examiner implicitly reasoned, correctly, that skilled artisans
would have recognized that Shytles’s elastomeric loop fasteners (FF 6)
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would have carried at least the same advantages as Roessler’s loop fasteners
(FF 1), sufficiently supporting a substitution therefor.
Under KSR, the Examiner’s “mere substitution” rationale suffices to
establish a prima facie case of obviousness. “[W]hen . . . the prior art . . . is
altered by the mere substitution of one element for another known in the
field, the combination must do more than yield a predictable result.” KSR,
550 U.S. at 416 (citation omitted). This is not one of those “more difficult . .
. cases” in which “the claimed subject matter . . . involve[s] more than the
simple substitution of one known element for another . . . .” Id. at 417.
Moreover, Shytles teaches that elastic loop fabrics provide quick recovery
from stress and are useful fasteners in incontinent devices (FF 6), further
supporting obviousness based on a predictable improvement. See KSR, 550
U.S. at 417-18.
As to the second argument, Appellant asserts that adhering Shytles’s
elastic loop fabric to Caldwell’s diaper would render the loop fabric inelastic
because Caldwell teaches adhering the fabric to an inelastic surface of the
diaper. (App. Br. 5-6.) This argument is also unavailing because it does not
address the more pertinent teaching of how Roessler’s similar hook fasteners
are attached to Roessler’s diaper.
Roessler teaches adhering loop-type patches (like those of Shytles)
onto the back sheet of a diaper using patterned “dots, strips or bars” of
adhesive. (FF 2.) The Examiner cited, inter alia, Roessler column 7, line 66
to col. 8, line 1, which describes the above-discussed pattern of adhesives for
loop attachment, as supporting a finding that the loop material constitutes
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elastic material satisfying the disputed limitation of claim 1. (Ans. 11.)
Appellant does not respond to this line of reasoning.
Roessler teaches using a “stretchable” “nonwoven fibrous web” as
one example of a backing layer 11 on which to attach loop fabrics. (FF 5.)
Roessler also teaches placing a loop fabric at least in the vicinity of elastic
waistbands on or within the layer 11 (FF 3), further indicating that the
elasticity of the loop fabric would not be lost by affixation to the diaper.
The Examiner concluded that the record teaches “upstanding loops which
would remain elastic/stretchable when attached to the cover . . . [and] no
evidence of record” supports Appellant’s “mere conclusions.” (Ans. 11.)
The record supports the Examiner’s findings and conclusion.
Attaching an elastic loop fabric to a “stretchable” web 11, or even an
inelastic web 11, using adhesive “dots, strips, or bars” (FF 2), would allow
the elastic loop fabric to elastically move between the attachment positions
at the dots, strips, or bars, and thereby retain at least some of its elasticity.
For the foregoing reasons, we are unpersuaded that the Examiner
erred in the rejection of claim 1, or of dependent claims 2-3 and 7-11, based
on Caldwell, Roessler, and Shytles. See 37 C.F.R. § 41.37(c)(1)(vii);
Nielson, 816 F.2d at 1569, 1572.

CONCLUSION
1. The Examiner erred in finding claim 1 indefinite under 35 USC
112, second paragraph.
2. The Examiner did not err in finding that Caldwell and Roessler
render obvious a hook-and-ladder type mechanical fastener releasably
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engaged with an elastic material on the disposable absorbent article, as set
forth in claim 1.
3. The Examiner did not err in finding that Caldwell, Roessler, and
Shytles render obvious a hook-and-ladder type mechanical fastener
releasably engaged with an elastic material on the disposable absorbent
article, as set forth in claim 1.
DECISION
The Examiner’s rejection of claims 1-3 and 7-11 based on
indefiniteness is not sustained. The Examiner’s rejections of claims 1-3 and
7-11 based on obviousness are sustained.
Accordingly, the Examiner’s decision to reject all claims on appeal,
claims 1-3 and 7-11, is affirmed.
The prior panel’s decision, Ex parte Heindel, Appeal No. 2007-0724
(BPAI June 20, 2007), entering a new ground of rejection of claims 12-22
for obviousness under 35 U.S.C. § 103(a) based on Caldwell and Roessler,
culminating in this appeal, is hereby made final for judicial review. See 37
C.F.R. § 41.50(e); MPEP 1214.01 (I) (Rev. 3, Aug. 2005).
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).
AFFIRMED

rvb
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Patent Owner:

Kimberly Clark Worldwide, Inc.
Legal Dept.
401 N Lake Street
Neenah, WI 54956

Third Party Requester

Peter G. Pappas, Esq.
Sutherland Asbill & Brennan, LLP
999 Peachtree Street, NE
Atlanta, GA 30309-3996