Ex Parte Datta et al

Board of Patent Appeals and Interferences

Apr 1, 2008

10010965 (B.P.A.I. Apr. 1, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte PAUL J. DATTA, KRISTI JO BRYANT, TIMOTHY J. BLENKE,
STEPHEN C. BAUMGARTNER, JULIE A. MOSER, BARBARA A.
GOSSEN, KATE MARGUERITE HANCOCK-COOKE, MARK G.
EVERSON, and PETER S. LORTSCHER
__________

Appeal 2008-1107
Application 10/010,965
Technology Center 3700
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Decided: April 1, 2008
__________

Before DONALD E. ADAMS, ERIC GRIMES, and JEFFREY N.
FREDMAN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an
absorbent article which the Examiner has rejected as anticipated and/or
obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse.

Appeal 2008-1107
Application 10/010,965

Background
“Absorbent articles such as diapers, training pants or incontinence
garments desirably provide a close, comfortable fit about the wearer and
contain body exudates” (Spec. 2). The Specification teaches that
“conventional diapers are not easily fastened about and removed from the
wearer after use without undesirably soiling the caregiver. Further, such
conventional diapers are not provided in a pant-like, prefastened
configuration” (Spec. 3). According to the Specification, the “invention is
directed to a pant-like, refastenable disposable absorbent article having side
seams which include a front ear passively bonded to a back ear, wherein the
front ear is releasable from the back ear causing minimal or no tearing or
damaging the back ear” (Spec. 5).
Statement of the Case
The Claims
Claims 1-12 and 40-43 are on appeal. We will focus on claims 1 and
40 which are representative and read as follows:
1. An absorbent article comprising:
a front waist region, a back waist region, and a crotch
region extending between the waist regions,
a first ear panel formed of a first material extending
from a first edge portion of the front waist region;
a second ear panel formed of a second material
different from the first material extending from a first edge
portion of the back waist region, the second material having
a basis weight greater than a basis weight of the first
material; and
at least one manually tearable passive bond
connecting the first ear panel and the second ear panel
together.

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Application 10/010,965

40. An absorbent article comprising:
a front waist region, a back waist region, and a crotch
region extending between the waist regions,
a first ear panel formed of a first material extending
from a first edge portion of the front waist region;
a second ear panel formed of a second material
different from the first material extending from a first edge
portion of the back waist region; and
at least one manually tearable passive bond
connecting the first ear panel and the second ear panel
together,
wherein in disconnecting the first ear panel from the
second ear panel, the first ear panel is damaged more than
the second ear panel.

The prior art

The Examiner relies on the following prior art references to show
unpatentability:
Johnson US 5,622,589 Apr. 22, 1997
McNichols US 6,036,805 Mar. 14, 2000
Morman US 5,226,992 Jul. 13, 1993
The issues
The rejections as presented by the Examiner are as follows:
Claims 1, 8, and 40-43 stand rejected as either anticipated under 35
U.S.C. § 102(b), or as being obvious under 35 U.S.C. § 103(a), over
Johnson.
Claims 2-7 stand rejected under 35 U.S.C. § 103(a), as being obvious
over Johnson.
Claims 9-12 stand rejected under 35 U.S.C. § 103(a), as being obvious
over Johnson, McNichols, and Morman.
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Application 10/010,965

35 U.S.C. § 102(b)/103(a) rejection over Johnson
Appellants argue that
Johnson et al. does not teach or suggest: (a) a second ear
panel formed of a second material different from the first ear
panel material; (b) the second material having a basis weight
greater than a basis weight of the first material; and/or (c) at
least one manually tearable passive bond connecting the first
ear panel and the second ear panel together

(App. Br. 7). Appellants contend that “first member 200 and second
member 202 are made of the same material regardless of whether barrier
member 205 is connected to or integrated with one of first member 200 and
second member 202” (id. at 8).
The Examiner responds to Appellants’ arguments, noting “the
teachings at the portions of Johnson cited supra (e.g., col. 6, lines 29-30[)]
clearly discloses that the first member and second member may be separate
members, i.e. not of the same web” (Ans. 11). The Examiner also argues
that “since one of the ear panels includes element 205 and one does not . . .
the basis weight of the one ear panel including element 205 is or obviously
is greater than the other ear panel which does not include 205” (Ans. 7-8).
The Examiner also argues that the “elements 200, 202 have a tensile
strength such that 205 will tear before 200, 202 do . . . Therefore, since that
one of the ear panels is not damaged or its tensile strength is not negatively
affected, such ear panel is affected or damaged less than the other ear panel”
(Ans. 8).
In view of these conflicting positions, we frame the obviousness issue
before us as follows:
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Application 10/010,965

Does Johnson teach or suggest ear panels which are formed of
different materials, have different basis weights and which differ in their
resistance to tearing?
Findings of Fact
1. Johnson teaches training pants which “comprise a chassis 14,
an absorbent assembly 22, and at least one flangeless seam 10” (Johnson
3:48-50).
2. Johnson teaches a “front portion 56 and the rear portion 58 of
the chassis 14 being joined together” and Johnson shows a crotch region
extended between the waist regions (Johnson 4:3-6, fig. 2).
3. Johnson teaches ear panels 200 and 202 with “a web 400
having longitudinal side edges 410 that will be processed into disposable
article 15 having first members 200 and second members 202 to be joined”
(Johnson 5:27-29).
4. Johnson teaches that “the barrier member 205 may comprise an
element or material that is unitary or integrated with at least a portion of the
first member 200” (Johnson 7:6-9). Johnson discloses ears in which ear 200
with material 205 is present at one end of the article and ear 202 is present at
the other end of the article but material 205 does not extend all the way to
the edge (see Johnson, fig. 9D).
5. Johnson teaches that “the composition of the barrier member
205 will be limited only by the particular joining means 300 which will be
used and the strength characteristics necessary to provide an acceptable
seam” (Johnson 7:24-27).
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Application 10/010,965

6. Johnson teaches a variety of barrier members including
“KEVLAR, NYLON, polypropylene films, polyethylene films, scrims,
woven materials or laminates of any [of] these or any other suitable
materials” (Johnson 7:14-16).
7. Johnson teaches that “to open the flangeless seam 10, the
barrier member 205 is preferably torn or separated” (Johnson 9:18-19).
Johnson further prefers that “the barrier member 205 comprises a nonwoven
material that will tear with less force than is needed to separate the barrier
member 205 from either the proximal portion 210 or the distal portion 212”
(Johnson 9:30-32).
Discussion
We interpret the claims using the broadest reasonable interpretation.
See, e.g., In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000) (“[D]uring
examination proceedings, claims are given their broadest reasonable
interpretation consistent with the specification.”). We agree with the
Examiner that Johnson teaches absorbent articles (FF 1-2) with ear panels
(FF 3). In considering whether the first and second ear panels of Johnson
are composed of the same or different materials, we must first interpret what
elements may constitute the ear panels and then determine which elements in
Johnson satisfy these ear panel requirements.
Appellants’ Specification defines “ear” as “any material that extends
laterally beyond the crotch area at the front or rear of the absorbent article”
(Spec. 8:11-12). In figure 9D, Johnson shows two ears, 200 and 202, which
extend laterally beyond the crotch area where ear 200 also has material 205
present laterally beyond the crotch area (FF 4). Even if we agree with the
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Examiner’s claim interpretation that the combination of materials 202 and
205 may represent a second material (see Ans. 6), the combination still does
not satisfy the element of claim 1 for “a second ear panel formed of a second
material different from the first material extending from a first edge portion
of the back waist region” (Claim 1). Barrier material 205 of Johnson does
not extend “from a first edge portion of the back waist region” as illustrated
in figure 9 of Johnson (see FF 4). Barrier material 205 begins at a point
beyond the edge of the back waist region (FF 4).
That is, the second ear panel – the part of Johnson’s article that
“extend[s] from a first edge portion of the back waist region – is made of the
same material as the first ear panel. The difference between the ear panels in
Johnson’s article is that the rear ear panel has an additional component
attached to part of the ear panel, not that the front and rear ear panels are
made of different materials, as required by claim 1.
Consequently, since we do not find that the materials 200 and 202 in
the ear panels differ in composition, we conclude that the basis weight is the
same, so that Johnson also does not meet the claim requirement “the second
material having a basis weight greater than a basis weight of the first
material” (Claim 1).
With regard to the issue of obviousness, we recognize that “the
[obviousness] analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
of the inferences and creative steps that a person of ordinary skill in the art
would employ”. KSR Int’l v. Teleflex Inc., 127 S. Ct. 1727, 1741, (2007).
However, the court also noted regarding the obviousness analysis “[t]o
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facilitate review, this analysis should be made explicit.” Id. at 1741. In the
instant case, no specific teachings have been disclosed to suggest forming
ear panels from first and second different materials which extend from a first
edge portion as required by the claims. Additionally, no reasons or
inferences on why such different materials would have been desirable are
discussed in the Answer or disclosed in Johnson. The rejection provides no
“apparent reason to combine the known elements in the fashion claimed.”
KSR, 127 S. Ct. at 1741.
We therefore reverse the rejection of claim 1 as anticipated or obvious
over Johnson. Having reversed the rejection of claim 1, we also reverse the
rejections of the claims 2-12 and 40-43 for the same reasons, because those
claims also require ear panels formed of different materials that extend from
a first edge portion, and again, the additional references cited by the
Examiner do not remedy the deficiencies of Johnson.

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CONCLUSION
In summary, we reverse the rejection of claims 1-12 and 40-43 under
35 U.S.C. § 102(b) and 35 U.S.C. § 103(a).

REVERSED

saj

Christopher M. Goff (27839)
ARMSTRONG TEASDALE LLP
ONE METROPOLITAN SQUARE
SUITE 2600
ST. LOUIS, MO 63102

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