Ex Parte Carr

Board of Patent Appeals and Interferences

May 28, 2010

11026931 (B.P.A.I. May. 28, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JAMES M. CARR
__________

Appeal 2009-007371
Application 11/026,931
Technology Center 1700
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Decided: May 28, 2010
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Before MICHAEL P. COLAIANNI, CATHERINE Q. TIMM, and
BEVERLY A. FRANKLIN, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 the final rejection of claims
1-24. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
Appellant discloses a method of making absorbent articles using a
composite material having a first and a second elastomeric strip that form
waist regions (Spec. 2:29-31; 3:8-12).

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Claim 1 is illustrative:
1. A cross-machine direction method of producing disposable
absorbent articles, the method comprising:

providing a web of substantially non-extensible material, the web
extending in a machine direction and defining opposite web side edges;

applying a tensioning force to the web in a first direction, causing the
web to neck in a second direction perpendicular to the first direction;

superimposing and attaching a first strip of elastomeric material along
a first side region of the necked web during application of the tensioning
force to define a first composite region;

superimposing and attaching a second strip of elastomeric material
along a second side region of the necked web during application of the
tensioning force, the second strip being laterally spaced apart from the first
strip, such that the first and second strips define a center region of the web
therebetween;

attaching the web to an absorbent body; and

cutting individual absorbent articles from the web along a cut line
which extends in the cross-machine direction, wherein the cut line defines
side regions of the absorbent articles, and wherein the first and second side
regions of the web respectively define first and second waist regions of the
articles, each absorbent article defining a longitudinal direction generally
parallel to the cut line and a lateral direction generally perpendicular to the
longitudinal direction,

wherein each composite region is elastomeric in the longitudinal
direction.

Appellant appeals the following rejection:
1. Claims 1-16 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over either one of Mormon I (WO 2004/047702 A1,
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June 10, 2004 or US 2004/0102754 A1, May 27, 2004) in view of any
one of Nomura (US 5,147,487, Sep. 15, 1992), Merkatoris (US
5,389,173, Feb. 14, 1995), de Jackheere (FR 48,011, Feb. 26, 1986)1
or Glaug (US 5,711,832, Jan. 27, 1998) optionally in view of either
one of Vogt (US 6,113,717, Sep. 5, 2000) or Stopher (US 6,685,613
B1, Feb. 3, 2004).
2. Claims 17-24 are rejected under 35 U.S.C. § 103 as being
unpatentable over either one of Mormon II (WO 2005/060909 A1,
July 7, 2005 or US 2005/0124961 A1, Jun. 9, 2005) in view of any
one of Nomura, Merkatoris, de Jackheere or Glaug and optionally in
view of either one of Vogt or Stopher.
With regard to rejections (1) and (2) we address Appellant’s
arguments regarding features of independent claims 1 and 17. 37 C.F.R.
§ 41.37(c)(1)(vii).

ISSUE
Did the Examiner err in determining that the teachings of the
references as a whole as combined in rejections (1) and (2) would have
rendered obvious using the elastic strips of the composite material as waist
regions in an absorbent article within the meaning of 35 U.S.C. § 103(a)?
We decide this issue in the negative.

FACTUAL FINDINGS (FF)
We adopt the Examiner’s findings in the Answer and Final Office
Action as our own. We add the following factual findings for emphasis:

1 We rely on the English translation of record dated August 2008.
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1. The Examiner finds that Morman I and Morman II fail to expressly
state “how one would have manufactured a disposable absorbent
article by associating the liner material with an absorbent core in such
manufacture where the elastic portions of the composite web formed
the waist portions of the absorbent article.” Ans. 7. See also, Ans. 14.
2. The Examiner finds that Morman I and II teach placing elastic in the
waistband of disposable absorbent articles and that the composite web
of elastic side regions and material may be used to make an absorbent
article of any configuration. Ans. 7 and 13.
3. The Examiner finds that the secondary references Glaug, de
Jackheere, Nomura, Merkatoris, Vogt, or Stopher teach using a cross-
machine method to form absorbent articles wherein the process
configures a composite sheet having elastic regions so that the elastic
regions form the front and rear waist regions of the article. Ans. 8-11,
14-15.

ANALYSIS
Appellant argues that Morman I and II fail to teach or suggest that the
elastomeric material attached to a side region of a web defines waist regions
of the articles (App. Br. 3 and 5). Appellant contends that the secondary
references do not teach or suggest that a person of ordinary skill in the art
should disregard the plain teaching of Morman I and II and instead
superimpose and attach elastomeric material along first and second side
regions of the web (App. Br. 4 and 6).
The Examiner’s case is based upon findings that Morman I and II
contain teachings that a composite sheet having elastomeric side strips may
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be used to make absorbent articles of any configuration, which an ordinarily
skilled artisan would understand to include configuring the composite sheet
as part of the process so that the elastomeric portions form the waist regions
as taught by the secondary references (FF 1-3). In other words, the
teachings of the references as a whole would have suggested the subject
matter of the claimed method.
Appellant’s arguments fail to address the Examiner’s stated case.
Rather, Appellant argues what the Examiner concedes (i.e., that Morman I
and II do not expressly teach forming waist portions from the elastomeric
material) and fails to address persuasively the Examiner’s stated case based
upon the combination of Morman I and II and any one of the secondary
references.
Appellant’s only argument against the Examiner’s combinations of
the references is based on Morman I’s or II’s specific embodiments where
the elastic portions on the side of the absorbent article (App. Br. 3-4).
However, such argument fails to show error in the Examiner’s finding that
Morman I and II contain broader teachings that do not restrict Morman I and
II to a particular configuration of the composite material elastic regions in
the absorbent product (FF 1). Certainly, when the teachings of Morman I
and II are fully examined, they cannot be said to teach away from
configuring the composite material such that the elastic portions form waist
regions as taught by the secondary references.
For these reasons, the Examiner did not err in determining that the
teachings of the references as a whole would have rendered obvious the
subject matter of claims 1 and 17. We affirm rejections (1) and (2).

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DECISION
The Examiner’s decision is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

AFFIRMED

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