Ex Parte Almberg

Board of Patent Appeals and Interferences

Sep 13, 2011

10225203 (B.P.A.I. Sep. 13, 2011)

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.
10/225,203 08/22/2002 Christian Almberg 010315-165 3523
7590 09/13/2011
Ronald L. Grudziecki
BURNS, DOANE, SWECKER & MATHIS, L.L.P.
P.O. Box 1404
Alexandria, VA 22313-1404
EXAMINER
STEPHENS, JACQUELINE F
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
09/13/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte CHRISTIAN ALMBERG
____________________

Appeal 2009-013497
Application 10/225,203
Technology Center 3700
____________________

Before: JENNIFER D. BAHR, FRED A. SILVERBERG, and WILLIAM
V. SAINDON, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-013497
Application 10/225,203
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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 1-4, 6, 10-14, and 16-191 under 35 U.S.C. § 103(a) as
being unpatentable over Forgar (WO 01/00129 A1, pub. Jan. 4, 2001) and
Brock (US 4,041,203, iss. Aug. 9, 1977). Appellant’s representative
presented oral argument on September 8, 2011. We have jurisdiction under
35 U.S.C. § 6(b).

SUMMARY OF DECISION
We REVERSE.

THE INVENTION
The claims are directed to an absorbent article provided with a pair of
belt members which render the article comfortable to wear and which are
resistant to tearing. Spec., paras. 2 and 6. Claim 1, reproduced below, is
illustrative of the claimed subject matter.
1. An absorbent article comprising:
a liquid permeable topsheet, a liquid impermeable
backsheet, and an absorbent body enclosed therebetween,
said article having a front portion, a rear portion and a crotch
portion therebetween, and further is provided with
a pair of belt members attached to one of the rear portion
and the front portion of the article and which are intended to

1 Appellant added claim 19 in the Amendment filed November 28, 2006.
Although claim 19 does not appear in any claim listing in subsequent
amendments, Appellant also does not appear to have explicitly canceled
claim 19. Appellant and the Examiner appear to disagree as to the status of
claim 19. See Ans. 3 (including claim 19 in the statement of rejection) and
App. Br. 8 n. 1. We leave to the Examiner and Appellant clarification as to
the status of claim 19.
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Application 10/225,203
3
be fastened together around a waist of a wearer by fasteners
and where the other one of said front portion and said rear
portion is provided with fasteners adapted to be fastened to
the belt members, in such a way that the article will assume
a pant shape, the belt members form a part of a waist portion
of the pant,
the belt members comprise a flexible laminate of at least
three layers of fibrous material bonded together in a bonding
pattern, one of said layers having an external surface acting
as an attachment surface for said fasteners, said bonding
pattern having a bonding area of no more than 10% and a
density of bonding sites of between 1 and 15 bonding sites
per cm2, and said laminate having a tear strength of at least
22 N;
wherein said laminate comprises an inner layer of a soft
and skin friendly fibrous material, an outer layer that is
creped, and a middle layer that is more tear resistant than the
inner and outer layers.

OPINION
Appellant’s independent claim 1 requires the laminate of the belt
members to comprise an outer layer that is creped. The Examiner found that
“Forgar/Brock does not disclose the outer layer is creped.” Ans. 5. In order
to make up for that deficiency, the Examiner reasoned that “[i]t would have
been an obvious matter of design choice to crepe the outer layer since the
three-dimensional structure disclosed in Forgar and the creped outer layer
solves the same problem of an improved gripping surface.” Ans. 5-6. The
Examiner adds that, since Forgar’s three-dimensional structure provides the
same function as the structure of Appellant’s invention (i.e., creating an
improved gripping surface), Forgar’s laminate structure “is functionally
equivalent to the present invention.” Ans. 8. The Examiner then cites a
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Application 10/225,203
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principle of law directed to product-by-process claims, but does not
elaborate on how, if at all, the stated principle applies to the present case. Id.
A dispositive issue raised in this appeal is whether the Examiner has
established a prima facie case that it would have been obvious to modify
Forgar so as to have a belt member laminate comprising an outer layer that
is creped.
As pointed out by Appellant, the Examiner has explicitly
acknowledged that neither Forgar nor Brock discloses creping the outer
layer. See App. Br. 10. Neither has the Examiner cited any evidence
showing that a person of ordinary skill in the art at the time of Appellant’s
invention would have appreciated that creping the outer layer of the belt
would create an improved gripping surface. Accordingly, the Examiner’s
articulated reason for the modification lacks a rational underpinning, and
thus cannot support the conclusion of obviousness of the subject matter of
claim 1 or its dependent claims.2

DECISION
For the above reasons, the Examiner’s decision is reversed.

REVERSED

2 Rejections on obviousness grounds must be supported by “some articulated
reasoning with some rational underpinning” to combine the known elements
in the manner required in the claim at issue. In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006), cited with approval in KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007).
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