Ex Parte Elsberg et al

Patent Trial and Appeal Board

Jun 14, 2013

10150360 (P.T.A.B. Jun. 14, 2013)

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.
10/150,360 05/17/2002 Laura Linda Elsberg 14,131.1 2904
23556 7590 06/14/2013
KIMBERLY-CLARK WORLDWIDE, INC.
Tara Pohlkotte
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
ANDERSON, CATHARINE L
ART UNIT PAPER NUMBER
3778
MAIL DATE DELIVERY MODE
06/14/2013 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 LAURA LINDA ELSBERG, BRIAN WALTER ANGIELSKI,
JUNE MARIE DE VALK, TIM JOSEPH JANSSEN, PATRICK SEAN
McNICHOLS, JENNIFER ELIZABETH POZNIAK, BRUCE REED
SHAFER, JAMES BENNINGTON STOPHER and GARY LEE TRAVIS

____________

Appeal 2011-005518
Application 10/150,360
Technology Center 3700
____________

Before MICHAEL L. HOELTER, RICHARD E. RICE and
MITCHELL G. WEATHERLY, Administrative Patent Judges.

RICE, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
Laura Linda Elsberg, et al. (Appellants) seek our review under
35 U.S.C. § 134 of the Examiner’s rejection of claims 58-70. Claims 1-57
have been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The claimed subject matter “relates to disposable absorbent articles
which are adapted to contain body exudates” and, more particularly, “to
prefastened absorbent articles having stretch panels for improved fit and
performance.” Spec. 1, ll. 3-5. Claim 58 is the sole independent claim and
is reproduced below, with italics for emphasis:
58. A prefastened disposable absorbent article
comprising an absorbent chassis defining a front waist region, a
rear waist region, a crotch region which extends between and
connects said waist regions, a pair of longitudinally opposed
end edges, and a pair of laterally opposed side edges, said
absorbent article comprising:
a) at least one stretch panel which is located in one of
said waist regions of said absorbent chassis and which includes
a single piece of elastomeric material, the single piece of
elastomeric material defining an entirety of a waist edge, an
entirety of a pair of laterally opposed outboard edges which are
located laterally beyond said laterally opposed side edges of
said absorbent chassis, and an entirety of an inward edge which
is located longitudinally inward from said waist edge and which
extends between the laterally opposed side edges, wherein said
stretch panel is designed to elongate in a lateral direction at
least about 30 percent to provide a conforming fit about a
wearer's waist;
b) a pair of primary fasteners which are located on said
laterally opposed outboard edges and which are releasably
prefastened to an opposite waist region to releasably engage
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said front waist region to said rear waist region to provide said
prefastened disposable absorbent article; and
c) first and second pairs of passive side bonds which are
located laterally inward of said primary fasteners on said one
waist region and which releasably connect an overlapped
portion of said one waist region to said opposite waist region to
assist in maintaining said prefastened absorbent article in a
prefastened condition, said first pair of passive side bonds
connecting said one waist region to said opposite waist region
along said pair of longitudinally opposed end edges, and said
second pair of passive side bonds connecting said one waist
region to said opposite waist region along said pair of laterally
opposed side edges.

REFERENCES RELIED ON BY THE EXAMINER
Ando US 5,370,634 Dec. 6, 1994
Buell US 5,685,874 Nov. 11, 1997
Serbiak US 5,846,232 Dec. 8, 1998

THE REJECTIONS
Claims 58-62 and 64-70 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Ando and Buell.
Claim 63 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Ando, Buell and Serbiak.

ANALYSIS
Appellants argue claims 58-62 as a group. App. Br. 4-5. We select
claim 58 as representative.1
Appellants challenge the Examiner’s finding that Ando discloses an
embodiment having a single piece of elastomeric material that extends along

1 See 37 C.F.R. § 41.37(c)(1)(vii).
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the entirety of the rear waist region, thereby defining an entirety of a waist
edge, as required by claim 58. App. Br. 4. Appellants contend that the
limitation “defining an entirety of a waist edge” requires “a situation as
illustrated in Appellants’ Figure 5, wherein the stretch panel width 71 is
shown to extend completely from one side of the garment to the other,
thereby defining the entirety of the waist edge 72.” Id. Appellants argue
that in the embodiment of Ando’s Figure 10 the waist edge is defined by a
number of separate and distinct components (including tape fasteners 16A,
flaps 15E, elastic members 115 and waist body portion 17), rather than a
single piece of elastomeric material as claimed, and that Ando “describes the
various elastic members as being of different raw materials.” Id.
(referencing Ando, col. 9, ll. 61-66).
Appellants’ contention that “defining an entirety of a waist edge”
requires a waist edge that extends completely from one side of the garment
to the other is not consistent with the Specification. As described in the
Specification, waist edge 72 of diaper 20 does not extend the full width of
stretch panel 70, but only as far as the side edges 30 of the absorbent chassis
or member 28; the only portions of the stretch panel 70 described as
extending laterally beyond the side edges 30 of the absorbent member 28 are
the outboard edges 74. See Spec. 14, l. 35 – 15, l. 2 (“The illustrated stretch
panel 70 generally defines a waist edge 72, a pair of laterally opposed
outboard edges 74 which are located laterally beyond the side edges 30 of
the absorbent chassis 28, and an inward edge 76 which is located
longitudinally inward from the waist edge 72.”); id. at 16, ll. 8-10 (“As
illustrated in the various embodiments of the present invention, the laterally
outboard edges 74 of the stretch panel 70 extend beyond the side edges 30 of
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the absorbent chassis 28 of the diaper 20.”). Appellants’ Figure 4 depicts
waist edge 72 as having the same width 50 as the absorbent member 28,
while the entirety of the stretch panel 70 including the outboard edges 74
defines a lateral width 71 that is greater than the width 50, as shown in
Figure 5 and described in the Specification. Id. at 17, ll. 13-16; figs, 4 and 5.
Thus, Appellants’ asserted claim construction is inconsistent with the
Specification.2 A person of ordinary skill in the art would understand the
limitation “defining an entirety of a waist edge,” consistent with the
Specification, to encompass the entire waist edge of a front or rear region of
a diaper, exclusive of any portion located laterally beyond the side edges of
the absorbent member.
We agree with the Examiner that Ando discloses a diaper having a
single piece of material extending along the entire waist edge of a rear
region of a diaper, thus defining an entire waist edge. Ans. 3, 6. The
Examiner’s finding that Ando describes side flap elements 15A3 as
extensions of back side waist body portion 17 is supported by a
preponderance of the evidence. Id. at 6-7 (referencing Ando, col. 10,
ll. 64-67, fig. 10).3 Further, as noted by the Examiner, Ando’s disclosure at
column 9, lines 61-66, on which Appellants rely, refers to the side flap
elements 15A1 and 15A2, not side flap element 15A3. Ans. 6-7. While
Appellants are correct that tape fasteners 16A and flaps 15E are separate and

2 During examination, the PTO gives claims “their broadest reasonable
construction consistent with the specification.” In re Suitco Surface, Inc.,
603 F.3d 1255, 1259 (Fed. Cir. 2010) (quoting In re ICON Health & Fitness,
Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007)).
3 Expansible members 115 are coterminous with side flap element 15A3.
Ando, fig. 10.
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distinct components, they are each located laterally beyond the side edges of
absorbent member 4 and thus do not affect the Examiner’s findings under a
proper claim construction. See Ando, fig. 10.
Appellants’ argument that Ando does not disclose first and second
pairs of passive side bonds as set forth in subsection (c) of claim 58 is not
persuasive because the Examiner relies on Buell for this feature. See App.
Br. 5; Ans. 4 (referencing Buell, col. 3, ll. 29-31, fig. 1). Appellants’ further
argument that the teachings of Buell appear to be completely inapplicable
because the side seam bonds of Buell are not “passive” as recited in claim
58, but rather are designed to provide the pull-on diaper with permanent
structural integrity, is unpersuasive for several reasons. First, Buell is from
the same field of endeavor as Appellants’ claimed invention and thus is
analogous art. More specifically, Buell relates to the field of pull-on
prefastened absorbent articles having stretch panels for improved fit and
performance. E.g., Buell, col. 2, l. 60 – col. 3, l. 45; Spec. 4, l. 35 – 5,
l. 11.4 Second, Buell’s side seam bonds are “passive” in the same sense as
the passive side seam bonds described in Appellants’ Specification, i.e., the
bonds are fixed in place (cannot be repositioned to adjust the fit of the diaper
to the wearer). See Spec. 30, ll. 7-15; Buell, col. 17, l. 60 – col. 18, l. 40.
Third, Appellants’ contention that the structure of Buell’s side seam bonds
does not permit “breaking the seam bonds themselves” (see App. Br. 5) is
not commensurate with the scope of claim 58, which includes no such
limitation. Further, Buell’s disclosure of “tearing the diaper adjacent to the
bonded seams” does not necessarily mean that the structure of Buell’s side

4 See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) (determination of
analogous art based on same field of endeavor test).
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seam bonds does not permit breaking the seam bonds themselves. Buell
discloses that increasing the unbonded portion of the seams decreases the
strength of the seam and that unbonded portions above 65% are not
sufficiently strong to withstand the high forces and stresses placed on the
garment during wear. Buell, col. 18, ll. 17-23. As such, we do not agree
with Appellants that the structure of Buell’s side seam bonds necessarily
does not permit breaking the seam bonds themselves.
Accordingly, we sustain the rejection of claims 58-62 and 64-70 under
35 U.S.C. § 103(a) as being unpatentable over Ando and Buell.
Appellants argue that claim 63 is patentable for the same reasons
argued with respect to claim 58. App. Br. 6. Accordingly, for the reasons
discussed supra in connection with claim 58, we also sustain the rejection of
claim 63 under 35 U.S.C. § 103(a) as being unpatentable over Ando, Buell
and Serbiak.

DECISION
We affirm the rejections of claims 58-70.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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