Ex Parte Costa

Board of Patent Appeals and Interferences

May 21, 2004

09470793 (B.P.A.I. May. 21, 2004)

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The opinion in support of the decision being entered
today was not written for publication in a law journal
and is not binding precedent of the Board.
Paper No. 30
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

Ex parte ROGERIO COSTA

Appeal No. 2004-1174
Application No. 09/470,793

ON BRIEF

Before KIMLIN, WARREN and KRATZ, Administrative Patent Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1, 2,
5-11 and 14-17. Claim 1 is illustrative:
1. A disposable sanitary napkin comprising a top layer, a
coating layer and an absorbing core intermediate the top layer
and the coating layer, the sanitary napkin adapted to be worn in
a user's panties and having a longitudinal dimension and a
transverse dimension, wherein the absorbing core further
comprises three or more longitudinally extending substantially
independent absorbing panels, each absorbing panel being
separated in the transverse dimension by channels, and wherein
the top layer is sealed to the coating layer in the channels
between adjacent absorbing panels, along a longitudinal line to
form a joining means that allows the panels to pivot in relation
to each other; and wherein there are either 3 or 5 absorbing
panels.
Appeal No. 2004-1174
Application No. 09/470,793
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In the rejection of the appealed claims, the examiner relies
upon the following references:
Pierce et al. (Pierce) 4,490,147 Dec. 25, 1984
Abuto et al. (Abuto) 5,964,743 Oct. 12, 1999
Appellant's claimed invention is directed to a disposable
sanitary napkin comprising an absorbing core intermediate top and
coating layers. The absorbing core comprises three or more
longitudinally extending absorbing panels that are substantially
independent from each other, being separated by channels. The
top layer is sealed to the coating layer in the channels between
the absorbing panels. According to appellant,
[A] sanitary napkin having an odd number of panels, in
this case either 3 or 5 absorbing panels allows a
center panel to maintain good fit to a wearer's body in
use, while allowing the adjacent panels to pivot and
conform to the space between the wearer's legs in use"
[page 2 of Brief, last sentence].
Appealed claim 1 stands rejected under 35 U.S.C. § 102(e) as
being anticipated by Abuto. Claims 2, 5-11 and 14-17 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over
Abuto in view of Pierce.
Appellant submits at page 3 of the Brief that the appealed
claims, as separately rejected, stand or fall together. With
respect to the § 103 rejection, appellant simply states at page 6
of the Brief that appellant respectfully disagrees with this
Appeal No. 2004-1174
Application No. 09/470,793
1 Only claims 1, 2, 5-11 and 14-17 are currently pending and
on appeal.
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position, and that "[c]laims 2-11 and 13-17 are dependent from an
allowable base claim and thus are considered to be patentable for
the above reasons of record."1 Accordingly, since appellant has
not presented a substantive argument against the § 103 rejection,
all the appealed claims stand or fall together with claim 1.
Hence, we will limit our consideration to the examiner's § 102
rejection of claim 1.
We have thoroughly reviewed each of appellant's arguments
for patentability. However, we are in complete agreement with
the examiner that the claimed subject matter is unpatentable over
the cited prior art. Accordingly, we will sustain the examiner's
rejections for the reasons set forth in the Answer, and we add
the following for emphasis only.
Appellant does not dispute the examiner's factual
determination that Abuto discloses the claimed structure
comprising an absorbing core intermediate top and coating layers
wherein the core comprises three or more longitudinally extending
substantially independent absorbing panels that are separated in
the transverse dimension by channels, and further wherein the top
and coating layers are sealed together in the channels between
Appeal No. 2004-1174
Application No. 09/470,793
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the absorbing panels. Appellant also does not dispute that Abuto
discloses and claims that the absorbent material is incorporated
into personal care products, such as feminine hygiene products
(see columns 8 and 9). It is appellant's contention that whereas
appellant claims a disposable sanitary napkin, a specific article
of manufacture, "the absorbent material disclosed in Abuto is not
an absorbent article, it may be used to form an absorbent
article" (page 4 of Brief, second paragraph). Appellant
maintains that "the Figures 1-4 in Abuto are not products, but in
fact are components that may be incorporated into a final
absorbent article" (id.).
We are not persuaded by appellant's argument because we
concur with the examiner that Abuto fairly describes a disposable
sanitary napkin within the meaning of § 102. We are satisfied
that claims 8 and 9 of Abuto, which define a feminine hygiene
product as an article of manufacture, would be interpreted by one
of ordinary skill in the art as describing a disposable sanitary
napkin having the claimed structure. In our view, when the
reference is considered as a whole, it is not necessary for a
finding of description under § 102 that Abuto does not use the
terminology recited by appellant, i.e., disposable sanitary
napkin. As for appellant's argument that "there is no
Appeal No. 2004-1174
Application No. 09/470,793
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recognition within the Abuto reference of the criticality of
using either three or five absorbing panels in the final
absorbing product" (page 5 of Brief, second paragraph), the
examiner correctly points out that criticality is not relevant in
view of Abuto's description of the claimed structure (see Figure
2 of Abuto).
In conclusion, based on the foregoing and the reasons well-
stated by the examiner, the examiner's decision rejecting the
appealed claims is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)
CHARLES F. WARREN ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
PETER F. KRATZ )
Administrative Patent Judge )
ECK:clm
Appeal No. 2004-1174
Application No. 09/470,793
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Audley A. Ciamporcero Jr.
One Johnson & Johnson Plaza
New Brunswick, NJ 08933-7003