Ex Parte 7,000,260 et al

Patent Trial and Appeal Board

Mar 26, 2015

95002369 (P.T.A.B. Mar. 26, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
95/002,369 09/14/2012 7,000,260 34297-58 1065
7590 03/26/2015
DORITY & MANNING, P.A.
ONE LIBERTY SQUARE
55 BEATIE PLACE STE 1600
GREENVILLE, SC 29601
EXAMINER
GRAHAM, MATTHEW C
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
03/26/2015 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

FIRST QUALITY RETAIL SERVICES LLC
Respondent, Requester
v.
Patent of KIMBERLY-CLARK WORLDWIDE, INC.
Appellant, Patent Owner
________________

Appeal 2014-008261
Reexamination Control 95/002,369
Patent No. US 7,000,260 B2
1

Technology Center 3900
________________

Before STEVEN D.A. McCARTHY, DANIEL S. SONG and
BRETT C. MARTIN, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

1
Issued February 21, 2006 to Gregory John Rajala, Steven Craig
Gehling and Paul Daniel Suke (the “’260 patent”). The ’260 patent issued
from Appl. 10/391,420, filed March 18, 2003. The ’260 patent has been the
subject of related reexamination proceedings and litigation as detailed on
pages 1–2 of “Appellant’s Brief on Appeal” dated January 7, 2014; the
Related Proceedings Appendix to Appellant’s Brief on Appeal; and page 2
of the Rebuttal Brief dated March 28, 2014.
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STATEMENT OF THE CASE
The Appellant/Patent Owner appeals under 35 U.S.C. § 134(b) and 35
U.S.C. § 315(a) (2002) from a final rejection of claims 19–21 and 26–28
under 35 U.S.C. § 102(b) (2002) as being unpatentable over Nomura (US
5,055,103, issued Oct. 8, 1991). Claims 1–18, 22–25, 29 and 30 are not
subject to reexamination. (“Appellant’s Brief on Appeal” dated January 7,
2014 (“App. Br. PO”) at 2). It does not appear that any claims were added
or amended during the reexamination proceeding. We have jurisdiction
under § 134(b) and § 315(a).
We sustain the rejection of claims 19, 21, 26 and 28. We do not
sustain the rejection of claims 20 and 27.
The Examiner’s findings and conclusions are set forth in the “Right of
Appeal Notice” mailed October 10, 2013.
2
In addition to the Appeal Brief,
the Patent Owner also relies on a “Rebuttal Brief” dated March 28, 2014
(“Reb. Br. PO”). The Requester relies on a “Requester/Respondent’s Brief”
dated February 7, 2014 (“Resp. Br. Req’r”).
The ’260 patent teaches providing a garment blank subassembly for a
disposable garment including multiple leg elastics adhered sequentially to
edges surrounding the leg openings. (’260 patent, col. 6, ll. 46–48; col. 7, ll.
32–34; and Fig. 1). The ’260 patent additionally teaches that “using
multiple [leg] elastics facilitates placing of the elastics on the outer cover
layer 12 while maintaining advantageous production speeds” as the garment
blank subassembly moves through a machine in a direction perpendicular to
the longitudinal centerline of the blank. (’260 patent, col. 12, ll. 65–67).

2
The Examiner’s Answer mailed February 28, 2014, incorporates the
RAN by reference.
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We find that Figure 1 of Nomura depicts a diaper 1. Figure 2 of
Nomura is an exploded view of a garment blank subassembly for assembly
into the diaper 1. (See Nomura, col. 4, ll. 55–62 (describing how to
assemble the garment blank subassembly of Figure 2 into the diaper 1 of
Figure 1)). The garment blank subassembly depicted in Figure 2 of Nomura
includes a topsheet 6 and a backsheet 7. Nomura teaches that “[f]ront and
rear sections 10, 11 of the top- and backsheets 6, 7 define between the front
and rear sections 10, 11 a crotch area 12 having opposite side edges formed
with identical notched edges 13, 14, respectively, so as to define the
respective leg openings 2” of the diaper 1 after assembly. (Nomura, col. 3,
ll. 8–13). As depicted in Figure 2, the blank also includes elastic means 4
adhered to the backsheet 7 along and between the notched edges 14
corresponding to leg openings in the assembled diaper 1. (Nomura, col. 3,
ll. 26–40). Nomura teaches adhering the elastic means 4 to the backsheet 7
as the garment blank subassembly moves through a machine in a direction
perpendicular to a longitudinal centerline of the blank. (See Nomura, col. 3,
l. 59 – col. 4, l. 6 and Fig. 3).

ISSUES
Claims 19 and 26 are independent. Claim 19, which recites a garment
blank subassembly, is representative of claims 21, 26 and 28 for purposes of
the rejection on appeal. The Patent Owner argues the rejection of claims 20
and 27 separately. Only those arguments actually made by the Patent Owner
have been considered. Arguments that the Patent Owner could have made
but chose not to make have not been considered and are deemed to be
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waived. See 37 C.F.R. § 41.67(c)(1)(vii) (2011); In re Jung, 637 F.3d 1356,
1365 (Fed. Cir. 2011).
Two issues are dispositive of this appeal:
First, does Nomura describe a garment blank subassembly including:
[a] front body portion having first and second front
leg edge portions along the leg openings, . . . [and
a] back body portion having first and second back
leg edge portions along the leg openings
as recited in claim 19? (See App. Br. PO 6–9 and 18; Reb. Br. PO 3–5).
Second, does Nomura describe a garment blank subassembly
including a first elastic having first, second and third sections, “wherein the
second section of the first elastic is devoid of restorative tension in the
unsecured space and is free from securement to the first and second layers in
the unsecured space” as recited in claims 20 and 27? (See App. Br. PO 10–
18 and 18–19; Reb. Br. PO 5–11).

CLAIM 19
Claim 19 is reproduced below in revised reformat:
19. A garment blank subassembly having a front
body portion, a back body portion, and a crotch
portion extending from the front body portion to
the back body portion and between a pair of leg
openings,
the front body portion having
first and second front leg edge
portions along the leg openings,
a front end opposite the first and
second front leg edge portions, and
first and second front sides,
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the back body portion having
first and second back leg edge
portions along the leg openings,
a back end opposite the first and
second back leg edge portions, and
first and second back sides,
the garment blank subassembly having
a length extending between the front
and back ends, and
a width extending transverse to the
length,
the garment blank subassembly comprising:
(a) first and second layers
collectively extending from the front
end through the crotch portion to the
back end, and
defining an unsecured space
extending across the width of the
garment blank subassembly and
displaced from the front and back
ends,
the unsecured space being free from
securement of the first and second
layers to each other; and
(b) a first elastic secured to at least one of the
first and second layers and extending,
as a first section of the first elastic,
along the width of the garment blank
assembly and generally following one
of the first front leg edge portion and
the first back leg edge portion toward
the crotch portion,
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as a second section of the first elastic
when incorporated into the disposable
garment subassembly, across the
crotch portion, and
as a third section of the first elastic,
along and generally following one of
the second front leg edge portion and
the second back leg edge portion,
away from the crotch portion,
the second section of the first elastic
being disposed in the unsecured
space.

OPINION
Claim 19 recites a garment blank subassembly including:
[a] front body portion having first and second front
leg edge portions along the leg openings, . . . [and
a] back body portion having first and second back
leg edge portions along the leg openings.
The Patent Owner argues that the terms “first and second front leg edge
portions” and “first and second back leg edge portions” must be read onto
distinct and separate edges in the garment blank subassembly. (App. Br. PO
6–9). Despite the Patent Owner’s assertion to the contrary (see App. Br. PO
7), the garment blank subassembly depicted in Figure 2 of Nomura includes
distinct “first and second front leg edge portions” and “first and second back
leg edge portions” (see RAN 3).
A claim under reexamination is given its broadest reasonable
interpretation consistent with the underlying specification. In re Yamamoto,
740 F.2d 1569, 1571–72 (Fed. Cir. 1984). In the absence of an express
definition of a claim term in the specification or a clear disclaimer of scope,
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the claim term is interpreted as broadly as the ordinary usage of the term by
one of ordinary skill in the art reasonably would permit. In re ICON Health
& Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007); In re Morris, 127
F.3d 1048, 1054 (Fed. Cir. 1997). Properties of preferred embodiments
described in the specification that are not recited in a claim do not limit the
reasonable scope of the claim. E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d
1364, 1369 (Fed. Cir. 2003).
As explained earlier, we find that Figure 2 of Nomura depicts a blank
subassembly for assembling a diaper 1 that includes a front body portion,
generally designated by 10; a back body portion, generally designated by 11;
and a crotch, generally designated by 12. (See Nomura, col. 3, ll. 8–13).
The ’260 patent, of which appealed claim 19 is a part, uses the term “crotch”
broadly enough to encompass a portion of a garment blank subassembly that
does not include the entire leg opening. (See, e.g., ’260 patent, col. 10, ll.
24–28 and Fig. 2 (depicting the edge 78 of the crotch portion 24 as having a
length L7 parallel to the longitudinal centerline A–A less than the length of
the leg opening 44 when the garment blank subassembly 10 is laid flat)).
Reading the term “crotch” in the same manner onto the garment blank
subassembly depicted in Figure 2 of Nomura, the first and second front leg
edge portions, and the first and second back leg edge portions, read on
portions of the opposed notched edges 14 separated by crotch portions of the
notched edges.
This may be illustrated with the following diagram, derived from
Figure 2 of Nomura, which appears on page 7 of the Requester’s Respondent
Brief:
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The diagram depicts the backsheet 7 of Nomura’s garment blank
subassembly in perspective view. Arrows are added to illustrate the
positions of the first and second front leg edge portions, and of the first and
second back leg edge portions, along the notched edges 14.
Claim 19 recites “first and second front leg edge portions” and “first
and second back leg edge portions” rather than distinct edges. One may
define first and second front leg edge portions extending from respective
sides of the front body portion part of the way toward the crotch. Depending
on their length, these first and second front leg edge portions will extend
essentially perpendicular to a longitudinal centerline of the garment blank
subassembly. One may also define first and second front leg edge portions
extending from the crotch portion part of the way toward the sides of the
back body portion. These first and second front leg edge portions will
include angular portions extending generally along (tangent) lines forming
acute angles with a longitudinal centerline of the garment blank
subassembly. As defined in this manner, the first and second front leg edge
portions; and the first and second back leg edge portions are distinct
structures, that is, distinct portions of the two notched edges 14. (See RAN
3).
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The Patent Owner argues that the particular shapes of the edges
surrounding the leg openings of the garment blank subassemblies depicted in
Figures 1 and 2 of the ’260 patent offer advantages in terms of fit not offered
by the notched edges 13, 14 depicted in Figure 2 of Nomura. (See App. Br.
PO 7–8). These advantages are not recited in claim 19. The Patent Owner
does not persuade us that it has limited the scope of claim 19 to garment
blank subassemblies capable of providing these advantages. See Phillips v.
AWH Corp., 415 F.3d 1303, 1326–27 (Fed. Cir. 2005) (“The fact that the
written description of the ’798 patent sets forth multiple objectives to be
served by the baffles recited in the claims confirms that the term ‘baffles’
should not be read restrictively to require that the baffles in each case serve
all of the recited functions.”). Therefore, we find that Nomura describes a
garment blank subassembly including:
[a] front body portion having first and second front
leg edge portions along the leg openings, . . . [and
a] back body portion having first and second back
leg edge portions along the leg openings
as recited in representative claim 19.
The Patent Owner also argues that Nomura fails to describe a garment
blank subassembly including a first elastic that extends:
as a first section of the first elastic, along the width
of the garment blank assembly and generally
following one of the first front leg edge portion
and the first back leg edge portion toward the
crotch portion, . . . and
as a third section of the first elastic, along and
generally following one of the second front leg
edge portion and the second back leg edge portion,
away from the crotch portion.
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(App. Br. PO 9). The basis for this argument is that the garment blank
subassembly depicted in Figure 2 of Nomura lacks first and second front and
back leg edge portions, however. Because Nomura does describe these
features, we agree with the Examiner’s finding that Nomura anticipates
claims 19, 21, 26 and 28 under § 102(b).

Second Issue
Claim 20 recites a “garment blank subassembly as in claim 19
wherein the second section of the first elastic is devoid of restorative tension
in the unsecured space and is free from securement to the first and second
layers in the unsecured space.” Claim 27 has similar language.
In related patents assigned to the Patent Owner, the claims recite, for
example, that “the second section of the first elastic [is] substantially relaxed
when the garment blank subassembly is laid out flat.” (US 6,098,203 C1,
issued August 8, 2000 to Rajala, et al., at col. 16, ll. 40–42 (claim 1)). In
such cases, we have given effect to the term of degree “substantially” by
concluding that the term “substantially relaxed” did not imply that the
section of elastic was unstretched or under no tension. Here, however, the
term “devoid of restorative tension” is unmodified by any term of degree.
The term “devoid of restorative tension” should be given its ordinary
meaning, namely, that the second section of the first elastic is under no
tension (that is, there is no restoring force within the elastic.) This reading
of the term is consistent with the written description of the ’260 patent. The
Patent Owner correctly points out that this reading is particularly consistent
with the paragraph at column 16, lines 25–31 of the ’260 patent (see App.
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Br. PO 11), a paragraph having no counterparts in other related patents such
as US 6,098,203 C1.
As noted earlier, we find that Nomura teaches adhering the elastic
means 4 to the backsheet 7 as the backsheet moves through a machine in a
direction perpendicular to a longitudinal centerline of the blank. (See
Nomura, col. 3, l. 59 – col. 4, l. 6 and Fig. 3). As depicted in Figure 3 of
Nomura, the machine applies the elastic members 4B along a path that
reciprocates in the direction of the longitudinal centerline of the garment
blank subassembly in a sinusoidal fashion as the backsheet 7 moves
widthwise through the machine. The internal tension and the elongation
percentage of the elastic members 4B increase as the elastic members are
pulled toward the front or back body portion of the backsheet 7. (Nomura,
col. 4, ll. 8–23).
We find that Nomura teaches adhering the sections of the elastic
members 4B within elliptical regions 17′ surrounding the notched edges 14
to the backsheet 7. (Cf. Nomura, col. 3, ll. 62–66 (describing the application
of the adhesive to the adhesive areas 17′)). The adhesion of the outer
sections of the elastic members 4B to the backsheet 7 defines the first and
third sections 4B1 (see Nomura, Fig. 2), which are stretched by the action of
the adhesive against the internal tension of the elastic members. The Patent
Owner correctly argues that the internal tension in the elastic members 4B
during the application of the elastic members is greatest in the intermediate
lengths 4B2 in the unsecured region between the glued elliptical regions 17′.
(See App. Br. PO 14–15; compare Nomura, Fig. 3 with Fig. 2).
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Nomura also teaches that, after the respective extensions 4A1, 4B1 of
the first and second elastic members 4A, 4B are adhered to the backsheet 7:
The lengths (the intermediate parallel length 4A2,
4B2 in FIG. 2) of the first and second elastic
members 4A, 4B extending between each pair of
intersections 4C and being closely adjacent to each
other are loosened to be brought further close
together since the area of the backsheet 7
corresponding to these intermediate lengths 4A2,
4B2 carries no adhesive.
(Nomura, col. 4, ll. 39–45).
Neither the Examiner nor the Requester has proven by a
preponderance of the evidence that the intermediate lengths 4A2, 4B2 of
Nomura’s first and second pluralities of elastic members 4A, 4B are
necessarily devoid of restorative tension. The intermediate lengths 4A2, 4B2
are placed under elevated tension during the adhesion of the pluralities of
elastic members 4A, 4B to the backsheet 7. Although the intermediate
lengths 4A2, 4B2 loosen, that is, relax, to some degree after the external
tension is released, Nomura does not teach releasing the internal tension
within the intermediate lengths entirely. According to the Requester’s own
dictionary definition, the word “loosen” appearing in the passage at column
4, lines 39–45 of Nomura means “to make . . . loose or looser.” (E. Erlich,
ed., OXFORD AMERICAN DICTIONARY (Avon Books, New York 1980)
(“loosen”), cited in Resp. Br. Req’r 10). “Looser” does not imply the release
of all tension or stretching. We do not interpret Figure 2 of Nomura as
necessarily depicting the intermediate lengths 4A2, 4B2 as under no tension
so as to effectively nullify the resilient stretching properties of the elastic
elements across the crotch. Because neither the Examiner nor the Requester
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has proven by a preponderance of the evidence that that the intermediate
lengths 4A2, 4B2 are necessarily devoid of restorative tension, neither has
proven that Nomura anticipates claim 20 or claim 27 under § 102(b).

DECISION
We AFFIRM the Examiner’s decision rejecting claims 19, 21, 26 and
28.
We REVERSE the Examiner’s decision rejecting claims 20 and 27.
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956.
In the event neither party files a request for rehearing within the time
provided in 37 C.F.R. § 41.79, and this decision becomes final and
appealable under 37 C.F.R. § 41.81, a party seeking judicial review must
timely serve notice on the Director of the United States Patent and
Trademark Office. See 37 C.F.R. §§ 90.1 and 1.983.

AFFIRMED-IN-PART

Patent Owner:

DORITY & MANNING, P.A.
POST OFFICE BOX 1449
GREENVILLE, SC 29602

Third Party Requester:

AMSTER, ROTHSTEIN & EBENSTEIN LLP
90 PARK AVENUE
NEW YORK, NY 10016