Ex Parte Buck et al

Patent Trial and Appeal Board

May 22, 2013

11526929 (P.T.A.B. May. 22, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte TRAVIS ANDREW BUCK, GAVIN JOHN BROAD,
KEVIN CHARLES STRONG, and
GERALD WESTLEY BROWN
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Appeal 2011-003750
Application 11/526,929
Technology Center 3700
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Before: PHILLIP J. KAUFFMAN, BRETT C. MARTIN, and
MITCHELL G. WEATHERLY, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-003750
Application 11/526,929

2
STATEMENT OF THE CASE
Appellants seek review of the Examiner’s rejection of claims 1-19
under 35 U.S.C. § 103(a) as unpatentable over Agyapong (US 2003/0158533
A1; pub. Aug. 21, 2003) and Lochte (US 2004/0259707 A1; pub. Dec. 23,
2004). We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
Appellants’ claimed invention “relates to an improved absorbent
catamenial tampon having an ability to readily absorb fluid.” Spec. 1:9-10.
Independent claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A tampon pledget comprising
a. an absorbent material which comprises a first surface,
a second surface opposed to said first surface, an insertion end
opposed to a withdrawal end, a first longitudinal edge opposed
to a second longitudinal edge, a first lateral portion opposed to
a second lateral portion, and a central portion between said first
lateral portion and said second lateral portion;
b. an overwrap that substantially covers said first surface
of said absorbent material, wherein said overwrap is attached to
said central portion at a region of attachment having a width
greater than about 3 mm and wherein a thickness of said central
portion ranges from about 1 mm to about 10 mm.

OPINION1
Appellants present two arguments for the patentability of claim 1.
First, Appellants argue that Agyapong discloses a “tampon,” while in
contrast, claim 1 is directed to a “tampon pledget.” Br. 4-5 (citing

1 Appellants argue claims 1-19 as a group, and we select claim 1 as
representative. Br. 3-5; see 37 C.F.R. § 41.37(c)(1)(vii) (2011). Appellants
also “note that claims 12-16 are directed to a method of manufacture.” Br.
5. This statement does not rise to the level of separate argument for these
claims, and even if considered separately, such argument does not
demonstrate error in the rejection of these claims.
Appeal 2011-003750
Application 11/526,929

3
Agyapong, para. [0058]). While paragraph [0058] of Agyapong makes
reference to a “tampon,” the rejection relies upon Agyapong’s pledget 28 as
corresponding to the claimed tampon pledget. See Ans. 3; Agyapong, para.
[0046]; see also Spec. 5:17-18 (utilizing “pledget” and “tampon pledget” as
interchangeable terms). Therefore, Appellants’ argument does not address
the rejection as articulated by the Examiner.
Second, Appellants argue that “it is not clear where Agyapong teaches
or suggests either a region of attachment or a region of attachment having a
width as claimed by Applicants.” Br. 5. The Examiner proposes to modify
Agyapong by attaching the overwrap to the absorbent material as taught by
Lochte. See Ans. 3-5. Therefore, Appellants’ argument is an unconvincing
individual attack on Agyapong. See In re Merck & Co., Inc., 800 F.2d 1091,
1097 (Fed. Cir. 1986) citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)
(one cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references).
Consequently, Appellants fail to demonstrate error in the rejection of
claim 1, and claims 2-19 which fall with claim 1.2

DECISION
We affirm the Examiner’s decision to reject claims 1-19.

2 Appellants also argue that Lochte does not cure the deficiencies of
Agyapong. Br. 5. Because Appellants have not convincingly identified any
deficiencies with regard to Agyapong, we need not further consider this
argument.
Appeal 2011-003750
Application 11/526,929

4
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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