10837251 (B.P.A.I. Feb. 15, 2012)

Ex Parte Datta et al

Board of Patent Appeals and InterferencesFeb 15, 2012

10837251 (B.P.A.I. Feb. 15, 2012)

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. 10/837,251 04/30/2004 Paul Joseph Datta KCX-1507 (20009) 1120 22827 7590 02/15/2012 DORITY & MANNING, P.A. POST OFFICE BOX 1449 GREENVILLE, SC 29602-1449 EXAMINER SU, SUSAN SHAN ART UNIT PAPER NUMBER 3761 MAIL DATE DELIVERY MODE 02/15/2012 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 CATHERINE MARGUERITE HANCOCK-COOKE ____________________ Appeal 2010-002672 Application 10/837,251 Technology Center 3700 ____________________ Before: PHILLIP J. KAUFFMAN, WILLIAM V. SAINDON, and MICHAEL L. HOELTER, Administrative Patent Judges. SAINDON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-002672 Application 10/837,251 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1-25. We have jurisdiction under 35 U.S.C. § 6(b). The Claimed Subject Matter Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. An absorbent garment, comprising: an absorbent chassis defining a waist opening and first and second leg openings, wherein when in a flat state the absorbent chassis includes opposing curved side edges extending from a back waist region; the absorbent chassis having a longitudinal length, and first and second tabs defining transverse distal edges of the back waist region of the absorbent chassis; and the absorbent chassis having a diaper length ratio of about 0.85 or less, wherein the diaper length ratio is the longitudinal length of the absorbent chassis divided by an expanded width of the absorbent chassis measured from a distal edge of the first tab to a distal edge of the second tab. Rejections I. Claims 11, 17-19, and 25 are rejected under 35 U.S.C. § 102(b) as anticipated by Fell (US 2002/0177829 A1, pub. Nov. 28, 2002). II. Claims 12-16 and 20-24 are rejected under 35 U.S.C. § 103(a) as unpatentable over Fell. III. Claims 1-10 are rejected under § 103(a) as unpatentable over Fell and Schmitz (US 2002/0032427 A1, pub. Mar. 14, 2002). SUMMARY OF DECISION We AFFIRM. Appeal 2010-002672 Application 10/837,251 3 OPINION Rejection I – Anticipation by Fell Independent claims 11 and 19 each specify an absorbent garment having particular characteristics calculated using the garment’s “longitudinal length” and “expanded width.” The Examiner found that Fell describes a garment having the claimed characteristics based on the garment’s longitudinal length and expanded width. Ans. 3-4. Appellants argue that the claims require the longitudinal length and expanded width to be measured based on a particular procedure set forth in the Specification and not discussed in Fell. Br. 5-9 (citing to Spec., paras. [0062]-[0065]). Independent claims 11 and 19 do not call for any particular method for measuring the length or width. Further, the Specification does not set forth with precision, deliberateness, or clarity a particular definition limiting longitudinal length or expanded width to mean width and length measured by a particular method. At paragraphs [0062]-[0065], the Specification merely identifies “[a] suitable method” for measurement. Accordingly, we are not persuaded that the Examiner erred by not limiting the claimed invention to the particular exemplary measurement procedure outlined in the Specification1. Appellants do not allege any other errors in the Examiner’s rejection. Accordingly, we sustain Rejection I. 1 See In re Paulson, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (an inventor must define specific terms with “reasonable clarity, deliberateness, and precision” in order to be his own lexicographer, as opposed to merely describing “in a general fashion certain features”), In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997) (“Absent an express definition in their specification, the fact that appellants can point to definitions or usages that conform to their interpretation does not make the PTO’s definition unreasonable”). Appeal 2010-002672 Application 10/837,251 4 Rejection II – Obviousness in view of Fell Appellants rely on the unpersuasive argument set forth above in arguing that the Examiner erred in rejecting claims 12-16 and 20-24 as obvious in view of Fell. We are not persuaded for the reasons set forth above. Accordingly, we sustain Rejection II. Rejection III – Obviousness in view of Fell and Schmitz Claim 1 requires, in relevant part, an absorbent garment with an absorbent chassis that has “opposing curved side edges extending from a back waist region.” The Examiner found that Fell does not teach the claimed side edges, but that Schmitz does. Ans. 6-7 (finding that Schmitz teaches tabs having curved side edges extending from a back waist region of an absorbent article). Appellants first argue that Schmitz has straight side edges 72, 74. Br. 14. However, the Examiner does not propose to incorporate the edges 72 or 74 but rather the curved edges of tabs 31. Ans. 7. Appellants next argue that one of ordinary skill in the art would not recognize tabs 31 of Schmitz as a side edge of the diaper. Br. 15. Appellants present no evidence or reasoning explaining this assertion. More importantly, the claim does not require a particular length of the chassis to be curved, nor the curved edges to extend in any particular direction from the back waist region. Upon review of the Specification, we do not find any discussion of “opposing curved side edges extending from a back waist region,” let alone one that would preclude the Examiner’s interpretation of Appeal 2010-002672 Application 10/837,251 5 the curved surfaces being curved tabs extending from the back waist region2. As such, we do not find error in the Examiner’s reading of “curved side edges” on the tabs 31 of Schmitz. Appellants lastly argue that Fell and Schmitz teach away from their combination. Br. 15-16. However, Appellants do not identify any teaching in Fell or Schmitz regarding the incorporation of Schmitz’s tabs 31. The Examiner is not proposing to incorporate the straight sides of Schmitz. See Ans. 7. Accordingly, Appellants have not identified a teaching that criticizes, discredits, or otherwise discourages curved tabs extending from the back waist portion. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (prior art does not teach away from claimed subject matter merely by disclosing a different solution to a similar problem unless the prior art also criticizes, discredits, or otherwise discourages the solution claimed). For the above reasons, we are not apprised of error in Rejection III. DECISION In light of the above, we affirm the Examiner’s decision regarding claims 1-25. 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)(iv). AFFIRMED hh 2 Further, the Specification describes an embodiment commensurate with the Examiner’s proposed combination: tabs (ears) extending from the back waist region. See Spec., para. [0014].