Ex parte Boulanger

Board of Patent Appeals and Interferences

Aug 31, 2000

08676454 (B.P.A.I. Aug. 31, 2000)

1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of
the Board.
Paper No. 19
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte ROGER BOULANGER
__________
Appeal No. 1999-0441
Application No. 08/676,454
__________
ON BRIEF
__________
Before STAAB, NASE, and GONZALES, Administrative Patent
Judges.
STAAB, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the examiner’s final
rejection of claims 1, 2, 5, 6, 8-11 and 13-18, all the claims
currently pending in the application. An amendment filed
Appeal No. 1999-0441
Application No. 08/676,454
Our understanding of this foreign language document is1
derived from a translation prepared in the PTO, a copy of
which is attached to this opinion.
2
subsequent to the Final Rejection has been entered. See the
Advisory Action mailed January 12, 1998 (Paper No. 11).
Appellant’s invention pertains to a sanitary absorbent
product, such as a sanitary napkin, which is worn in contact
with the skin of the wearer for the purpose of absorption and
holding of body liquids, and to a method of making such a
product. More particularly, the absorbent product includes
tabs extending laterally for attachment to an undergarment of
the wearer. A further understanding of the invention can be
derived from a reading of exemplary claims 1 and 18, which
appear in an appendix to appellant’s Main Brief.
The references relied upon by the examiner in support of
the rejections are:
Lavash et al. (Lavish) 5,389,094 Feb. 14,
1995
Pigneul (PCT) 93/04651 Mar. 18,1
1993
Appeal No. 1999-0441
Application No. 08/676,454
A rejection of claims 1, 2, 5, 6, 8, 9 and 17 under 352
U.S.C. § 112, second paragraph, made in the Final Rejection
has been withdrawn by the examiner in light of appellant’s
amendment filed subsequent to the Final Rejection. See the
above noted Advisory Action.
3
The following rejections are before us for review:2
(a) claims 1, 2, 6, 8-11, 13 and 17, rejected under 35
U.S.C. § 102(b) as being anticipated by Pigneul;
(b) claims 5 and 14-16, rejected under 35 U.S.C. § 103 as
being unpatentable over Pigneul in view of Lavash; and
(c) claim 18, rejected under 35 U.S.C. § 103 as being
unpatentable over Pigneul.
Opinion
In reaching our decision in this appeal, we have given
careful consideration to appellant’s specification and claims,
to the applied prior art references, and to the respective
positions articulated by appellant and the examiner. As a
consequence of our review, we cannot sustain the examiner’s
rejections.
An objective of appellant’s invention is to provide an
absorbent product that protects against leakage along the
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Application No. 08/676,454
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sides of the product. To this end, longitudinal edge portions
of the main body of the product are folded over the cover
layer 5 adjacent the longitudinal edges of the main body and
thermally bonded to the cover layer along the length of the
main body except in the vicinity of the tabs 3. The result is
that liquid collecting pockets are formed where the tabs join
the main body portion. This is depicted in appellant’s
drawing figures at bond areas 18, which extend along the
longitudinal edges of the main body 2 except in the vicinity
of tabs 3, and at pockets 20, which open toward the main body
where the tabs 3 overlie the main body. As explained in the
specification at page 4, lines 1-4, and as shown in Figure 3,
“[w]hen the tabs are subjected to outward tensile force which
occurs during the attachment of the tabs to the undergarment
of the wearer, the tension is transmitted to the pockets and
causes them to open-up.”
Pigneul pertains to an absorbent product that includes an
outer barrier layer 2 that extends beyond and is folded over
an absorbent core 1 along longitudinal edge portions of the
core to form side flaps 4 that function like appellant’s tabs
3. The folded over portions of the barrier layer are
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Application No. 08/676,454
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maintained in position by bonds at ends 6 and gluing points 8
(see Figure 4). Pigneul explains that “[t]he two large flaps
[4] at each side of the center region remain free in order to
be folded and glued underneath the pad or the supporting panty
[10] during use, but one or several gluing or sealing points
[8] arranged on each side of the pad will constitute a stop
and thus ensure protection on the side of the cushion when the
flaps are folded” (translation, paragraph bridging pages 1 and
2). Thus, it reasonably appears that, like appellant, an
objective of Pigneul is to provide pockets that open to the
main body portion of the product where the flaps 4 overlie the
absorbent core to prevent side leakage. In this regard, see
also page 3, lines 14-16, of the translation.
Independent claim 1 calls for, in part, the cover layer 5
and barrier layer 10 to be folded over and bonded to the cover
layer “along each respective longitudinal edge of said main
body with the exception of at least a portion of a line of
intersection between each tab [3] and said main body [2]
remains unbonded to form a pocket adjacent to each tab which
is capable of collecting body exudate that may flow in a
lateral direction . . . .” Independent claims 10 and 18
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contain similar limitations. The linchpin of the examiner’s
rejections is that this limitation reads on the folded over
portions 4, 5 and 6 of Pigneul that are bonded to the main
body portion at gluing points 8. In this regard, the examiner
states that “[e]ach bond site [8] is a continuous point or
line extending from one end of the pocket toward an extremity.
It should be noted that the length of the line or the distance
toward the extremity has not been claimed” (First Office
Action (Paper No. 4), page 5).
Appellant’s argument in opposition to this position may
be summarized by the following quote from the Reply Brief
(page 5):
Appellant has consistently maintained that the
claim language “affixed to said main body along each
respective longitudinal edge of said main body with
the exception of at least a portion of a line of
intersection between each tab and said main body
remains unbonded” sufficiently distinguishes over
the cited reference which is limited to single bond
points at the intersection of the tab and the main
body.
Appellant has enclosed herewith a copy of a
dictionary definition of the word “along” as defined
in The American Heritage College Dictionary, Third
Edition, (1993). As defined therein, the word
“along” is a preposition meaning “Over the length
of.” Thus, with regard to the present pending
claims, the invention requires that the bonds extend
“over the length” of each respective longitudinal
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edge of the main body. A bond which extends over
the length of a longitudinal edge is clearly
distinct from a single bond point as taught in the
cited reference.
In keeping with the above argument, appellant directs us
to certain portions of the specification for guidance in
understanding the meaning of the claim language in question.
Specifically, appellant states:
The cited portion of the Specification [i.e.,
page 8, lines 11-17] states that “the longitudinal
peripheral edge portions of the main body are then
folded over the cover layer side along the
longitudinal edges of the napkin, and bonded to the
cover layer 5 with either discrete or continuous
elongated thermal bonds 18 which run from points
near the end corners of the body 2 to points where
the tabs 3 begin as illustrated.” It is
respectfully submitted that a “discrete or
continuous elongated thermal bond” as defined above
is consistent with “both layers being bonded to said
cover layer along each respective longitudinal edge
of said main body with the exception of at least a
portion of a line of intersection between each tab
and said main body remains unbonded to form a pocket
adjacent to each tab” as required by the claims.
[Reply Brief, paragraph bridging pages 3 and 4.]
In proceedings before it, the PTO applies to verbiage of
claims the broadest reasonable meaning of the words in their
ordinary usage as they would be understood by one of ordinary
skill in the art, taking into account whatever enlightenment
by way of definitions or otherwise that may be afforded by the
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written description contained in appellant’s specification.
In re Morris, 127 F.3d 1048, 1054, 44 USPQ2d 1023, 1027 (Fed.
Cir. 1997). In the present instance, we are in accord with
appellant that one of ordinary skill in the art would not have
viewed the folded over portions 4-6 of Pigneul, which are
bonded to the cover layer at only two discrete gluing points 8
between the ends 6, as being bonded to the cover layer
along each respective longitudinal edge of said main
body with the exception of at least a portion of a
line of intersection between each tab and said main
body remaining unbonded to form a pocket adjacent to
each tab which is capable of collecting body
exudate,
as called for in claim 1, or as called for in similar language
found in independent claims 10 and 18. This is especially so
when this claim language is read within the context of the
underlying disclosure, which informs the artisan that the
folded over portions are bonded to the edges of the main body
with either discrete or continuous elongated thermal bonds 18
“which run from points near the end corners of the body 2 to
points where the tabs 3” (specification, page 8). Given the
generally accepted dictionary definition of “along” (i.e.,
“over the length of”) posited by appellant on page 5 of the
Reply Brief, and the enlightenment afforded by appellant’s
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Application No. 08/676,454
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written description of the invention, the circumstance that,
broadly speaking, the gluing points 8 of Pigneul have a finite
dimension in the longitudinal direction of the main body
portion does not justify the examiner’s strained and
unreasonable position that the reference structure corresponds
to the claimed subject matter. In short, we can think of no
circumstance under which the artisan, consistent with the
appellant’s specification, would construe the language of
claims 1, 10 and 18 describing the bonding of the folded over
barrier layer to the cover layer as reading on Pigneul with
its pairs of discrete gluing points 8.
This being the case we will not sustain the examiner’s
rejection of claims 1, 2, 6, 8-11, 13 and 17, as being
anticipated by Pigneul. Likewise, we will not sustain the
examiner’s rejection of claim 18 as being unpatentable over
Pigneul, since Pigneul also does not teach or suggest
modifying Pigneul in a matter that would have resulted in the
“folding” step of that claim.
As to the standing § 103 rejection of claims 5 and 14-16
as being unpatentable over Pigneul in view of Lavash, we have
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carefully reviewed the reference to Lavash additionally relied
upon by the examiner but find nothing therein that makes up
for the deficiencies of Pigneul noted above. Therefore, we
also will not sustain this rejection.
The decision of the examiner is reversed.
REVERSED
Lawrence J. Staab )
Administrative Patent Judge )
)
)
)
Jeffrey V. Nase ) BOARD OF
PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
John F. Gonzales )
Administrative Patent Judge )
LJS:tdl
Appeal No. 1999-0441
Application No. 08/676,454
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Audley A. Ciamporcero, Jr.
One Johnson & Johnson Plaza
New Brunswick, NJ 08933-7033