Ex Parte Datta et al

Board of Patent Appeals and Interferences

Sep 12, 2011

10430655 (B.P.A.I. Sep. 12, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/430,655 05/05/2003 Paul Joseph Datta 17,978 5640
23556 7590 09/13/2011
KIMBERLY-CLARK WORLDWIDE, INC.
Tara Pohlkotte
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
ANDERSON, CATHARINE L
ART UNIT PAPER NUMBER
3764
MAIL DATE DELIVERY MODE
09/13/2011 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PAUL JOSEPH DATTA and BARBARA ANN GOSSEN
____________

Appeal 2009-014599
Application 10/430,655
Technology Center 3700
____________

Before JOHN C. KERINS, MICHAEL W. O’NEILL, and
KEN B. BARRETT, Administrative Patent Judges.

Opinion for the Board filed by O’NEILL, Administrative Patent Judge.

Concurring opinion filed by BARRETT, Administrative Patent Judge.

O’NEILL, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Paul Joseph Datta and Barbara Ann Gossen (Appellants) appeal under
35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1-7, 10-14,
16-27, and 29 under 35 U.S.C. § 102(e) as anticipated by Couture-Dorschner
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Application 10/430,655

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(Couture hereinafter) (U.S. Pat. Pub. No. 2003/0125702 A1, pub. Jul. 3,
2003), claims 1, 15, 16, 33, and 34 under 35 U.S.C. § 102(b) as anticipated
by Roessler (WO 00/37010, pub. Jun. 29, 2000), and claims 9, 30-32, and
35-38 under 35 U.S.C. § 103(a) as unpatentable over Roessler.1 We have
jurisdiction under 35 U.S.C. § 6(b). We REVERSE.
The Invention
The claims on appeal relate to a disposable garment having a pair of
frangible sections. Spec. 2:3-19.
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A disposable garment comprising:
a) a front panel having a first surface, a
second surface and a pair of side edges;
b) a first attachment member secured to said
first surface of said front panel and extending
beyond said pair of side edges, said first
attachment member being a single member having
a first side edge, a second side edge and having a
width;
c) a back panel having a first surface, a
second surface and a pair of tabs each extending
laterally outward in opposite directions, each of
said tabs containing a second attachment member
located on said second surface;
d) an absorbent assembly including a liquid
pervious bodyside liner, a liquid-impervious outer
cover, and an absorbent positioned therebetween,
said absorbent assembly further including a first
end and a second end, said absorbent assembly
being secured to said front panel approximate said

1 We note that claim 9 is dependent upon claim 8 that has been canceled and
claim 28 has been omitted from prosecution. These prosecution
informalities do not affect our disposition of this appeal.
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first end and being secured to said back panel
approximate said second end, and said absorbent
assembly capable of being folded to enable said
first and second side edges of said first attachment
member to be secured to said pair of tabs to form a
waist opening and a pair of leg openings; and
e) a pair of frangible sections formed in said
first attachment member at locations outboard of
said pair of side edges of said front panel, each of
said pair of frangible sections extending across the
width of said first attachment member, and each of
said pair of frangible sections being formed of
intermittent strength along its length by making
some areas stronger than other areas, whereby said
pair of tabs can be folded to allow each of said
second attachment members to bridge across one
of said pair of frangible sections and be
removeably secured to said first attachment
member to form an easy to open disposable
garment.

OPINION
The determinative issue in this appeal involves the broadest
reasonable interpretation of the claimed frangible feature. Based on the
Examiner’s rejections, the Examiner posits that in order for frangible
sections to be satisfied by the prior art, all that is required is that at some
point in time the frangible sections were intact, present, or engaged. Ans. 5.
Appellants argue that in order for frangible sections to be satisfied by the
prior art, what is required is that the frangible sections and the attachment
members are “both engaged” at the same time. App. Br. 11. We concur
with the Appellants.
From our review of the Specification, when the claimed frangible
feature is read in light of the Specification as it would be interpreted by a
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person of ordinary skill in the art, its broadest reasonable interpretation is
limited to a perforation that is present, intact, or engaged at the time the
second attachment members bridge across, as called for in the claims. App.
Br. 10. In other words, if the frangible section, i.e., the perforated line
(72,74) is present that holds together a first attachment member (24,26) to a
side edge (18,20) of the front panel (12) (see Appellants’ Fig. 1 and Spec.
10:16-35), is no longer intact, then there is not a frangible section from the
viewpoint of a person having ordinary skill in the art.
Given that neither Couture nor Roessler discloses, teaches, or suggests
a frangible section being intact, engaged, or present at the time when what
the Examiner has found as satisfying the claimed functional feature of the
pairs of tabs being folded to allow each of the second attachment members
to bridge across the frangible sections, it cannot be said that the claimed
frangible features encompass, i.e., are as broad as the Examiner interprets,
the structure disclosed, taught, or suggested within either Couture or
Roessler. Rather, upon the disengagement of what the Examiner finds as
satisfying the claimed frangible feature, Couture and Roessler disclose
fastener elements bridging across what, in the past, was the position or
location of a frangible section. Moreover, the Examiner’s attempt to bolster
the position that Roessler’s structure would anticipate the aforementioned
claimed functional feature if Roessler’s diaper were folded “in the
longitudinal direction 38” (Ans. 7) appears contrived in order to provide
some tenuous foundation to support the Examiner’s rejections, and neither
sufficiently grounded in disclosures of Roessler nor sound reasoning of what
a person of ordinary skill in the art would understand when reviewing the
disclosure of Roessler.
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DECISION
For the reasons stated above, the Examiner’s rejections under
§§ 102(b), 102(e), and 103(a) for all claims on appeal are reversed.

REVERSED

BARRETT, Administrative Patent Judge, concurring.

I concur only in the result of the opinion.

KBB

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