Ex Parte Gannon et al

Patent Trial and Appeal Board

Nov 20, 2012

11096086 (P.T.A.B. Nov. 20, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte ELAINE M. GANNON, ANNEMARIE DEVINE JOSEPH,
and H. MICHAEL MOSCHEROSCH
__________

Appeal 2011-013613
Application 11/096,086
Technology Center 3700
__________

Before FRANCISCO C. PRATS, MELANIE L. McCOLLUM, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

McCOLLUM, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a body-
attachable absorbent article. The Examiner has rejected the claims as
obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse.
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STATEMENT OF THE CASE
Claims 1-19 are on appeal (App. Br. 2).1 We will focus on claim 1,
which reads as follows:
1. A body-attachable absorbent article comprising:
a body facing surface;
a garment facing surface;
an adhesive arranged on said body facing surface for securing said
article to the body; and
a tactile placement aid that is tactilely perceptible to a user from said
garment facing surface of said article, said tactile placement aid extending
outwardly relative to the garment facing surface of said article.
Claims 1-4, 6, 8-11, and 13-19 stand rejected under 35 U.S.C.
§ 103(a) as obvious over Hershberger et al. (US 6,045,544, Apr. 4, 2000)
(Ans. 4).
Claims 5, 7, and 12 stand rejected under 35 U.S.C. § 103(a) as
obvious over Hershberger in view of Lassen et al. (US 4,673,403, Jun. 16,
1987) (Ans. 14).
I
The Examiner finds:
[A]s best depicted in Figure 11, Hershberger discloses . . . a
body-attachable . . . absorbent article 20 comprising a body
facing surface 26, a garment facing surface 28, an adhesive
arranged on the body facing surface for securing the article to
the body . . . and a tactile placement aid 94 that is tactilely
perceptible to a user . . . from the garment facing surface
(Figure 11) of the article (Figure 1 at 94).

1 Claims 20-23 are also pending but have been withdrawn from
consideration (App. Br. 2).
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Application 11/096,086

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(Ans. 4-5.) The Examiner also finds that “Hershberger discloses the claimed
invention except for expressly disclosing the tactile placement aid extending
outwardly relative to the garment facing surface of the article” (id. at 5).
However, the Examiner concludes that it would have been obvious “to
comprise the tactile placement aid of Hershberger extending either
outwardly or inwardly since both configurations provide a non-planar
surface with a region that serves as indication of how to hold the device
during insertion” (id. at 9).
Findings of Fact
1. Hershberger discloses an absorbent interlabial device having an
arcuate pattern of bonds 94 (Hershberger, col. 6, l. 10, & col. 9, ll. 51-52).
2. In particular, Hershberger discloses:
The arcuate pattern of bonds 94 shown in FIG. 2 can be used to
provide an absorbent interlabial device with an indication of
how the device should be held for placement during
application. The arcuate pattern of bonds 94 . . . provides a
relatively stiff region for gripping the device 20 for insertion.
The arcuate pattern of bonds 94 also provides a visual
indication of proper holding of the device 20 for insertion (i.e.
the wearer has visual feedback that the upper portion 26 should
be first and furthest inserted).
(Id. at col. 11, ll. 51-59.)
3. Hershberger also discloses:
FIG. 10 shows a particularly preferred bonding process. The
bonding process shown in the drawings penetrates through the
sliver of absorbent material 100 and autogenously bonds the
first portion 102A of the cover material to the second
portion 102B of the cover material 102. . . . The bonding causes
portions of the cover material 102 that were on opposite sides
of the absorbent material 100 to contact each other, and draws
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Application 11/096,086

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the cover material 102 tighter around these portions of the
sliver of absorbent material to shape the same.
(Id. at col. 21, l. 57, to col. 22, l. 16.)
Analysis
Hershberger discloses an arcuate pattern of bonds 94 (Findings of Fact
(FF) 1-2), which the Examiner acknowledges are indentations (Ans. 9; see
also FF 3). Hershberger also discloses that its “pattern of bonds 94 . . .
provides a relatively stiff region for gripping the device 20 for insertion” and
“a visual indication of proper holding of the device 20 for insertion (i.e. the
wearer has visual feedback that the upper portion 26 should be first and
furthest inserted)” (FF 2). As the bonds 94 ultimately provide an indented
region for gripping the device (see FF 2), the bonds 94 may indeed be
tactilely perceptible to a user.
However, given Hershberger’s explicit teaching that the bonding
functions to draw central portions of the absorbent material closer to each
other (see FF 3), thus providing the indented gripping region, the Examiner
has not, in our view, provided an adequate evidentiary basis explaining why
an ordinary artisan would have configured the bonds 94 to provide a tactile
placement aid extending outwardly relative to the garment facing surface of
the article. We therefore reverse the obviousness rejection over Hershberger
of claim 1 and of claims 2-4, 6, 8-11, and 13-19, which depend from
claim 1.
II
In rejecting claims 5, 7, and 12, which depend from claim 1, the
Examiner additionally relies on Lassen (Ans. 14-16). The Examiner finds:
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As best depicted in Figures 13a-13b, and 13h, 13i and 13j,
Lassen teaches tactile placement aids comprising concentric
circles (13i, 13a; claim 5); a first tactilely perceptible element
and at least a second tactilely perceptible element arranged
within said first tactilely perceptible element (13a, 13i; claim 7)
. . . ; and the tactile placement aid is formed by embossing the
article ( . . . claim 12).
(Id. at 15.) The Examiner concludes that it would have been obvious “to
provide the tactile placement aid of Hershberger in the claimed geometric
patterns and formed by embossing as taught by Lassen” (id.).
Findings of Fact
4. Lassen discloses “an incontinence device, feminine pad or
napkin having an indicator thereon to aid in proper placement of the pad
such that the indicator is in the area of greatest body exudate flow” (Lassen,
col. 1, ll. 63-66).
5. Lassen also discloses:
The means of indicating the target area 150 may be . . . any
suitable indicator that is not uncomfortable to the user. Typical
of such means are a colorant layer on the cover of the pad, a
colorant layer below the semitransparent cover of a pad on the
absorbent, positioning of a removable indicator on the pad
perforation of the cover, or embossing. . . . Embossing allows
placing by feel alone but does not provide the pad with
projections that might be uncomfortable to the wearer.
(Id. at col. 14, ll. 22-45.)
6. In addition, Lassen states that “FIGS. 13a through 13j indicate
a variety of patterns on pads . . . that could be utilized for indicating the
target area” (id. at col. 14, ll. 53-55).
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Analysis
Lassen discloses using an embossment as a tactile placement aid and
that a variety of patterns may be used (FF 4-6). However, the Examiner has
not adequately explained why the combination would result in a tactile
placement aid on a garment facing surface that extends outwardly relative to
the garment facing surface. As discussed above, Hershberger discloses
bonds 94, which the Examiner acknowledges are indentations (Ans. 9).
Whether or not it would have been obvious to form these bonds by
embossing, as recited in claim 12, and/or in the patterns recited in claims 5
and 7, given that the bonds connect opposite sides of the article (FF 3), the
Examiner has not adequately explained why it would have been obvious to
instead form projections extending outwardly relative to the garment facing
surface. We are therefore compelled to reverse the obviousness rejection of
claims 5, 7, and 12 over Hershberger in view of Lassen.

REVERSED

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