Ex parte Faulks et al.

Board of Patent Appeals and Interferences

Jan 31, 2000

08575926 (B.P.A.I. Jan. 31, 2000)

See the second final rejection, mailed December 9, 19971
(Paper No. 14).
The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 25
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte MICHAEL J. FAULKS, PAUL J. SERBIAK
and JODY D. SUPRISE
____________
Appeal No. 1999-0369
Application No. 08/575,926
____________
HEARD: January 11, 2001
____________
Before STAAB, MCQUADE, and BAHR, Administrative Patent Judges.
STAAB, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the examiner’s final
rejection of claims 1-12, 14-16, 19, 21-24, 26-42 and 44-51. 1
Upon further consideration, the examiner now views dependent
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Application No. 08/575,926
2
claims 4, 23 and 39 as “patentably distinguishing over the
prior art of record” (answer, page 7, under the heading
“Allowable Subject Matter”). Presumably, the examiner means
by this that claims 4, 23 and 39 would be allowable if
rewritten in independent form to include all the limitations
of the base claims and any intervening claims from which they
depend. Accordingly, the appeal as to claims 4, 23 and 39 is
dismissed, leaving for our consideration only claims 1-3, 5-
12, 14-16, 19, 21, 22, 24, 26-38, 40-42 and 44-51. No other
claims are pending.
Appellants’ invention pertains to an absorbent article
such as an infant diaper, training pants, adult incontinence
product, and the like, and in particular to an absorbent
article having a rear reservoir which includes a rear waist
flap to contain body exudates. Of particular interest to
appellants is the provision of a spacer in the rear reservoir
to maintain a sufficient void volume in the reservoir.
Independent claims 1, 19 and 34, copies of which are found in
an appendix to appellants’ main brief, are illustrative of the
appealed subject matter.
Appeal No. 1999-0369
Application No. 08/575,926
In the final rejection and the answer, the examiner2
inadvertently included canceled claim 20 in the statement of
this rejection.
3
The references relied upon by the examiner in support of
the final rejection of the appealed claims are:
Foreman 4,938,755 Jul. 3, 1990
Roe et al. (Roe) 5,514,121 May 7, 1996
Claims 1, 5, 6, 9-12, 14, 15, 19, 27-31, 33-36, 42, 44
and 47-51 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Foreman.2
Claims 2, 3, 7, 8, 21, 22, 24, 26, 37, 38, 40, 41, 45 and
48-51 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Foreman.
Claims 1, 5, 6, 16, 19, 32, 34-36, 46 and 48-51 stand
rejected under 35 U.S.C. § 102(e) as being anticipated by Roe.
The examiner’s rationale in rejecting the appealed claims
is found in the second final rejection (Paper No. 14) and the
answer (Paper No. 18).
Appeal No. 1999-0369
Application No. 08/575,926
4
Appellants’ arguments in opposition to the positions
taken by the examiner in rejecting the appealed claims is
found in the main and reply briefs (Paper Nos. 11 and 17).
The rejections based on Foreman
Foreman is directed to a disposable absorbent article
such as a diaper comprising, in pertinent part, first barrier
cuffs 62 (see Figure 2) disposed adjacent each longitudinal
side edge and second barrier cuffs 262 (see Figure 3) disposed
adjacent at least one and preferably adjacent each end edge.
The barrier cuffs overlie the liquid-receiving surface 40 of
the topsheet 38 in the area of absorbent core 44 and are
spaced from surface 40 to define channels 96. With respect to
first barrier cuffs 62 disposed adjacent the longitudinal
edges of the absorbent article, Foreman states:
As shown in FIG.2, the first distal edge 66 is
formed by folding the end of the first barrier cuff
member back upon itself and securing it to another
segment of the first barrier cuff member by the
distal attachment means 93 to form a tunnel. A
spacing means 76 such as a spacing elastic member 77
is enclosed in the tunnel that is formed when the
end of the first barrier cuff member is folded back
upon itself; the spacing elastic member 77 being
secured in the first barrier cuff 62 by the spacing
elastic attachment means 94. The first distal edge
66 is thus spaced away from the liquid-receiving
Appeal No. 1999-0369
Application No. 08/575,926
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surface 40 by the elastic gathering action of the
spacing elastic members 77; a channel 96 thereby
being formed by at least the first proximal edge 64,
the first distal edge 66 and the inboard surface 68
of the first barrier cuff 62. The channel 96 is
shown as being open and ready to restrain, contain
and hold body exudates until the diaper 20 is
removed from the wearer. [Column 4, line 59 through
column 5, line 8; emphasis added.]
Concerning the second barrier cuffs 262 disposed adjacent
the end edges of the absorbent article, Figure 3 does not
illustrate the tunnel of these cuffs as being provided with
spacing means. However, Foreman explains that such a
construction is contemplated. Specifically, Foreman states:
A spacing means 76 such as a spacing elastic member
77 is preferably not disposed in the second barrier
cuff 262 because the gathering action of the spacing
elastic members 77 along the first distal edge 66
raises both the first and the second distal edge
above the liquid-receiving surface 40 to form a
channel 96; however, in alternative embodiments such
a construction is contemplated. [Column 5, lines
61-68; emphasis added.]
Thus, the examiner considers, and appellants do not
dispute, that Foreman discloses an unillustrated embodiment
wherein the second barrier cuffs 262 are provided with spacing
means like those provided in the first barrier cuffs 62. It
Appeal No. 1999-0369
Application No. 08/575,926
Foreman states at column 5, lines 3-6, that channel 96 is3
formed, in part, by first proximal edge 64, first distal edge
66 and the inboard surface 68 of the first barrier cuff 62.
Based on this description of what constitutes Foreman’s
channel, it is doubtful that an artisan would consider
Foreman’s spacing means 76 as being located “in” the channel.
6
is this unillustrated embodiment that the examiner relies upon
in rejecting the claims as being anticipated by Foreman.
With respect to the anticipation rejection of claim 19
based on Foreman, the last paragraph of claim 19 requires that
the spacer maintain the volume of the reservoir by effectively
occupying space in the rear reservoir. On the other hand, the
spacing means 76, 77 of Foreman, when incorporated into the
tunnel of the second barrier cuff 262, maintains the spacing
of the channel 96 by virtue of the “elastic gathering action
of spacing elastic member 77" (column 5, lines 2-3). Even if
it can be successfully argued that an artisan would consider
Foreman’s elastic member 77 as occupying space “in” the
channel (reservoir) as called for in paragraph (d) of claim
18, a proposition we consider to be unlikely, Foreman’s3
elastic member 77 does not by that action function to space
the barrier cuff 262 from liquid-receiving surface 40 to
thereby maintain a void volume in the channel 96 sufficient
Appeal No. 1999-0369
Application No. 08/575,926
7
for its intended purpose of receiving exudate. Stated
differently, we view claim 19 as implicitly requiring that the
spacer physically occupy a portion of the reservoir in a
manner that causes a sufficient void volume in the reservoir
to be maintained. This clearly is not the case in Foreman.
Instead, as pointed out above, Foreman’s spacing means 76, 77
functions to maintain a sufficient void volume in the
reservoir by means of an “elastic gathering action” (column 5,
lines 2-3) that causes the material of the tunnel to pucker
and thereby stand away from surface 40.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 102(b) rejection of independent claim 19, or claims 27-31,
33, 48 and 50 that depend therefrom, as being anticipated by
Foreman.
Independent claim 1 sets forth the relationship between
the spacer and the reservoir in essentially the same terms as
claim 19, and additionally requires that the spacer is
compressible to a limited degree by the body of the user.
Hence, for at least the reasons set forth above in our
treatment of claim 19, we shall not sustain the standing 35
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Application No. 08/575,926
8
U.S.C. § 102(b) rejection of independent claim 1, or claims 5,
6, 9-12, 14, 15 and 49 that depend therefrom, as being
anticipated by Foreman.
Turning to the rejection of independent claim 34 as being
anticipated by Foreman, claim 34 differs somewhat from
independent claims 1 and 19 in how it sets forth the
relationship between the spacer and the reservoir.
Specifically, paragraph (d) of claim 34 calls for a spacer
having a thickness, said spacer being disposed at at least one
of the rear portion and rear waist flap, and the rear waist
flap “being spaced from said rear portion by the thickness of
said spacer.” While the spacing means 76 of Foreman has at
least a nominal thickness, the rear waist flap (barrier cuff
262) is not spaced from the rear portion (surface 40) “by the
thickness of the spacer” as required by claim 34. Instead,
and as noted above, the barrier cuff 262 of Foreman is spaced
from the surface 40 by the gathering action of elastic members
77 of the spacing means. Hence, the absorbent article of
Foreman does not correspond to the subject matter of claim 34.
We therefore also shall not sustain the standing 35
U.S.C.
Appeal No. 1999-0369
Application No. 08/575,926
9
§ 102(b) rejection of independent claim 34, or claims 35, 36,
42, 44, 47 and 51 that depend therefrom, as being anticipated
by Foreman.
Claims 2, 3, 7, 8, 21, 22, 24, 26, 37, 38, 40, 41, 45 and
48-51 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Foreman. The examiner does not propose, and
it is not apparent to us, how the absorbent article of Foreman
could be modified to provide the relationship between the
spacer and the reservoir called for in independent claims 1,
19 and 34. Hence, even if we were to agree with the examiner
that it would have been obvious to provide the absorbent
article of Foreman with the features set forth in dependent
claims 2, 3, 7, 8, 21, 22, 24, 26, 37, 38, 40, 41, 45 and 48-
51, the rejection of these claims under 35 U.S.C. § 103 as
being unpatentable over Foreman is not sustainable.
The rejection based on Roe
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Application No. 08/575,926
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Roe is directed to a disposable absorbent article 20
having a liquid pervious topsheet 24, a liquid impervious
backsheet 26, and an intermediate absorbent core 28. Of
particular interest to
Roe is the provision of an expulsive spacer 30 attached to the
topsheet for receiving and collecting fecal matter. As
explained by Roe at column 4, line 63, through column 5, line
11,
The spacer 30 of the present invention may
either be releasably attached to the outwardly
oriented face of the topsheet 24, or may be
permanently joined thereto, depending upon the
particular embodiment. The spacer 30 collects and
receives fecal material, thereby preventing it from
excessively spreading and smearing against the skin
of the wearer. . . .
The spacer 30 according to the present invention
is “expulsive.” By expulsive it is meant the spacer
30 moves from a first position to a second position
and thereby expels or releases at least a portion of
the fetal material contained therein from the diaper
20. The movement may or may not detach the
expulsive spacer 30 from the diaper 20.
In Figures 2 and 3, Roe shows the spacer as being attached to
the rear portion of the topsheet at a location spaced from the
rear waist band area.
Appeal No. 1999-0369
Application No. 08/575,926
11
Independent claims 1 and 19 each call for an absorbent
article having a rear portion including a rear edge, and a
rear waist flap “extending from the vicinity of said rear edge
of said rear portion . . . to thereby define a rear reservoir
between said rear waist flap and said rear portion.” Each of
these claims also calls for a spacer mounted to at least one
of said rear portion and said rear waist flap “effectively
occupying space in said rear reservoir.” Independent claim 34
defines the reservoir in similar language, but requires that
the spacer is disposed at at least one of said rear portion
and said rear waist flap, and “spac[es] said rear waist flap
from said rear portion . . . by the thickness of said spacer.”
In attempting to read appellants’ claims on Roe, the
examiner equates Roe’s liner 38 to the claimed spacer. In
particular, the examiner posits that “the liner 38 can be
considered the spacer and the spacer 30 can be considered to
be the rear waist flap” (answer, page 6). We do not agree.
While we appreciate that during patent prosecution claims
should be given there broadest reasonable interpretation, we
can think of no circumstances under which the above noted
limitations of the independent claims can be fairly read on
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Application No. 08/575,926
12
the spacer 30 and spacer liner 38 of Roe. First, it is simply
not reasonable to consider the spacer 30 as corresponding to
the claimed “rear waist flap” as the examiner has done here.
Further, the spacer 30 of Roe does not occupy space in a
reservoir defined by a rear portion of the absorbent article
and a rear waist flap extending from the vicinity of the rear
edge of the absorbent article, as required by claims 1 and 19;
nor is spacer 30 of Roe disposed so as to space a rear waist
flap extending from the vicinity of the rear edge of the
absorbent article from the absorbent article’s rear portion,
as required by claim 34.
Therefore, we shall not sustain the standing 35 U.S.C.
§ 102(e) rejection of independent claims 1, 19 and 34, or
claims 5, 6, 16, 32, 35, 36, 46 and 48-51 that depend
therefrom, as being anticipated by Roe.
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Application No. 08/575,926
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Summary
Each of the examiner’s rejections is reversed.
The decision of the examiner is reversed.
REVERSED
LAWRENCE J. STAAB )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JOHN P. MCQUADE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
Appeal No. 1999-0369
Application No. 08/575,926
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lp
Appeal No. 1999-0369
Application No. 08/575,926
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THOMAS D. WILHELM
WILHELM LAW SERVICE
100 W. LAWRENCE
THIRD FLOOR
APPLETON, WI 54911
Leticia
Appeal No. 1999-0369
Application No. 08/575,926
APJ STAAB
APJ MCQUADE
APJ BAHR
DECISION: REVERSED
Send Reference(s): Yes No
or Translation (s)
Panel Change: Yes No
Index Sheet-2901 Rejection(s):
Prepared: January 22, 2002
Draft Final
3 MEM. CONF. Y N
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