Ex Parte Dennis et al

Patent Trial and Appeal Board

Dec 14, 2016

12364486 (P.T.A.B. Dec. 14, 2016)

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.
12/364,486 02/02/2009 Melissa Jean Dennis 64356058US07 4097
23556 7590 12/14/2016
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
NEENAH, WI54956
EXAMINER
VASAT, PETER S
ART UNIT PAPER NUMBER
3778
MAIL DATE DELIVERY MODE
12/14/2016 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 PATENT TRIAL AND APPEAL BOARD
Ex parte MELISSA JEAN DENNIS, ADRIENNE RAE LOYD,
THOMAS HAROLD ROESSLER, THOMAS ANDREW LUTZOW,
AID AN J. PETRIE, and DANIEL JOSEPH NELSON
Appeal 2015-002656
Application 12/364,486
Technology Center 3700
Before JAMES P. CALVE, WILLIAM A. CAPP, and
FREDERICK C. LANEY, Administrative Patent Judges.
CALVE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the final rejection of
claims 1, 3—7, 9-25, and 28—31. Appeal Br. 1. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2015-002656
Application 12/364,486
CLAIMED SUBJECT MATTER
Claims 1 and 25 are independent. Claim 1 is reproduced below.
1. A personal care article having a centerline extending in
the lateral direction, the article comprising:
an absorbent structure configured for disposition adjacent a
wearer’s vulva region; and
a shell for supporting the absorbent structure at the vulva
region, wherein the shell and the absorbent structure are not
similar in shape;
wherein the shell has a first side and a second side, the first side
having a first area and a second area;
wherein the second area of the shell has a second area
circumference, and the first area of the shell surrounds and
bounds between 25%-100% of the second area circumference;
wherein the shell has an anterior portion, portion and a posterior
portion, and a central portion between the anterior and posterior
portions;
wherein the posterior portion includes a body adhesive and is
adapted to attach to the body of a wearer between the vulva
region and the coccyx of the body of the wearer;
wherein the anterior portion includes a body adhesive and is
adapted to attach to the mons veneris region of the wearer;
wherein the central portion is free of body adhesive;
wherein the shell is asymmetric relative to the centerline such
that the anterior portion is shaped differently from the posterior
portion; and
wherein the absorbent structure is present in the second area of
the shell.
REJECTIONS
Claims 1, 3, 5-7, 9, 11, 12, 14-17,20,21,23,25,28, 30, and 31 are
rejected under 35 U.S.C. § 102(b) as anticipated by Drevik (US 2003/
0078554 Al, pub. Apr. 24, 2003).
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Appeal 2015-002656
Application 12/364,486
Claims 1, 3, 5—7, 9, 11—17, 20-23, 25, 28, 30, and 31 are rejected
under 35 U.S.C. § 103(a) as being unpatentable over Drevik.
Claim 4 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Drevik and Tanzer (US 7,137,971 B2, iss. Nov. 21, 2006).
Claims 10 and 29 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Drevik and McFall (US 6,702,796 B2, iss. Mar. 9, 2004).
Claims 18, 19, and 24 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Drevik and Brown (US 2001/0025163 Al, pub. Sept. 27,
2001).
ANALYSIS
Claims 1, 3, 5—7, 9, 11, 12, 14—17, 20, 21, 23, 25, 28, 30, and 31 anticipated
by Drevik
Appellants argue claims 1, 3, 5—7, 9, 11, 12, 14—17, 20, 21, 23, 25, 28,
30, and 31 as a group. Br. 3—6. We select claim 1 as a representative claim.
Claims 3, 5—7, 9, 11, 12, 14—17, 20, 21, 23, 25, 28, 30, and 31 stand or fall
with claim 1.
The Examiner found that Drevik discloses personal care article 301,
as recited in claim 1, including absorbent structure (absorption body 304)
and shell (surface layers 302, 303) that includes anterior portion (fastening
arrangements 313a, 313b), posterior portion (fastening arrangement 313c)
with body adhesive 320c, and central portion (where absorbent body 304 is
located) wherein the shell and absorbent structure are not similar in shape as
shown in Figure 3. Final Act. 2—3. The Examiner also found that Drevik’s
first area surrounds 100% of the second area in Figure 3. Ans. 4.
Appellants argue that claim 1 requires a shell and absorbent structure
to be “not similar in shape” but Drevik’s surface layers 302, 303 and
absorption body 304 are essentially the same. Br. 4, 5 (citing Drevik | 51).
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Appeal 2015-002656
Application 12/364,486
Appellants’ argument is not persuasive because the Examiner found
that Drevik’s shell includes anterior portion 313a, 313b, posterior portion
313c, and central portion where absorbent structure 304 is located between
layers 302, 303. Final Act. 3. Even if layers 302, 303 have a similar shape
as absorbent structure 304 in the central portion, the anterior and posterior
portions extend well beyond the central portion and include extensions that
form a Y-shape for sanitary towel 301, where no absorbent structure exists.
See Drevik || 51—53, Fig. 3; Final Act. 2—3; Ans. 2-4. Appellants have not
persuaded us of error in these findings of the Examiner, which we find to be
supported by a preponderance of evidence.
Appellants also argue that Drevik does not disclose a shell because
absorption body 304 is enclosed between layers 302, 303, and adhesive 320c
is provided only on layer 302, and not on layer 303. Br. 5.
Appellants arguments are not commensurate with the scope of claim 1
and thus are not persuasive of error in the Examiner’s findings that Drevik
discloses a shell as liquid-permeable surface layer 302, liquid-impermeable
surface layer 303 and fastening attachments 313a,b,c extending therefrom.
The Examiner’s finding that surface layers 302, 303 support absorbent
structure 304 is supported by a preponderance of evidence, and Appellants
do not dispute that finding. Br. 3—6. We find no lexicographic definition or
disclaimer in Appellants’ Specification to limit the term “shell” to a single
ply of material, and Appellants have not presented arguments in that regard.
Appellants recognize that surface layer 302 includes adhesive. Br. 5.
Therefore, the Examiner’s finding that Drevik teaches a shell with adhesive
on the anterior portion 313c of the first side is supported by a preponderance
of evidence. Final Act. 3.
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Appeal 2015-002656
Application 12/364,486
Claim 1 does not require the absorbent structure to be located on the
first side or the same side of the shell as the adhesive. Claim 1 recites that
the shell has a first side with a first and a second area and absorbent structure
present in the second area of the shell (i.e., on the first side of the shell).
Claim 1 also recites that the shell has anterior, posterior, and central portions
but does not recite these portions as being on any particular side of the shell.
Appellants disclose embodiments in which absorbent structure 21 is
located on the same side of shell 14 as body adhesive 44. Spec., Figs. 1—4.
We decline to read unclaimed features of Appellants’ disclosure into claim 1
when the language of claim 1 is broader than those embodiments.
Thus, we sustain the rejection of claims 1, 3, 5—7, 9, 11, 12, 14—17,
20,21,23,25,28,30, and 31.
Claims 1, 3, 5—7, 9, 11—17, 20—23, 25, 28, 30, and 31 as unpatentable over
Drevik
Appellants argue claims 1, 3, 5—7, 9, 11—17, 20—23, 25, 28, 30, and 31
as a group. Br. 6—8. We select claim 1 as a representative claim. Claims 3,
5—7, 9, 11—17, 20-23, 28, 30, and 31 stand or fall with claim 1.
The Examiner found that the embodiment disclosed by Figure 6 of
Drevik teaches a personal care product as recited in independent claims 1
and 15, except the feature that the first area of the shell surrounds between
25% and 100% of the second area circumference. Final Act. 6—8, 11. The
Examiner determined that it would have been obvious to modify Drevik’s
Figure 6 embodiment with teachings for the Figure 3 embodiment to provide
an absorbent product that is attached to the body and that is not deformed in
use. Id. at 8.
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Appeal 2015-002656
Application 12/364,486
Appellants again argue that Drevik does not disclose a shell and an
absorbent structure that “are not similar in shape” as recited in claim 1.
Br. 6—7. Appellants also argue that Drevik does not teach a shell because
“contrary to the current Application,” the absorbent structure is placed in the
second area of the first side. Id. at 7—8.
These arguments are not persuasive for the reasons discussed above
for the rejection of claim 1 as anticipated by Drevik. Figure 6 of Drevik
presents similar structure as Figure 3 relevant to claim 1, except the extent
by which the first area of the shell surrounds the second area circumference.
The Examiner cites Figure 3 of Drevik for that feature and Drevik’s teaching
of the combinability of features of different embodiments. Final Act. 7—8.
Claim 1 recites an absorbent structure that is placed in the second area
of the first side of the shell, but claim 1 does not require the body adhesive
to be placed on a particular side of the shell. See Br. 7—8. Thus, Appellants’
arguments regarding the placement of the body adhesive (Br. 7—8) are not
commensurate with the scope of claim 1, and therefore are not persuasive.
Thus, we sustain the rejection of claims 1, 3, 5—7, 9, 11—17, 20-23,
25, 28, 30, and 31.
Claim 4, 10, 18, 19, 24, 29 as unpatentable over Drevik and Tanzer
Appellants argue that Tanzer, McFall, and Brown fail to cure the
deficiencies of Drevik as to independent claims 1 and 25, from which these
claims depend. See Br. 8—10. Because we sustain the rejections of claims 1
and 25 as anticipated by, and as unpatentable over, Drevik, these arguments
are not persuasive. Accordingly, we sustain the rejection of claims 4, 10, 18,
19, 24, and 29.
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Appeal 2015-002656
Application 12/364,486
DECISION
We affirm the rejections of claims 1, 3—7, 9—25, and 28—31.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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