Ex Parte Hirotsu

Board of Patent Appeals and Interferences

Dec 15, 2011

10719321 (B.P.A.I. Dec. 15, 2011)

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.
10/719,321 11/21/2003 Dennis Osamu Hirotsu AA551C 3072
27752 7590 12/16/2011
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
CRAIG, PAULA L
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
12/16/2011 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 DENNIS OSAMU HIROTSU
__________

Appeal 2009-015368
Application 10/719,321
Technology Center 3700
__________

Before DONALD E. ADAMS, ERIC GRIMES, and FRANCISCO C.
PRATS, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a package
for sanitary napkins, which the Examiner has rejected as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Claims 1-3 and 5-7 are on appeal. The claims have not been argued
separately and therefore stand or fall together. 37 C.F.R. § 41.37(c)(1)(vii).
Claim 1 is representative and reads as follows:
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Application 10/719,321

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1. A package for sanitary napkins products, comprising:
at least one window and an outer surface; and
a plurality of individually wrapped sanitary napkins contained in the
package, the plurality of individually wrapped sanitary napkins including at
least two different types of sanitary napkins having different physical
properties or structures, wherein each type of sanitary napkins is identified
by an indication means disposed on the wrapper of the respective sanitary
napkins, wherein the indication means of at least one of each of the two
types of sanitary napkins can be seen through the at least one window and
wherein the indication means is selected from the group consisting of colors,
lines, patterns, ornamental designs, pictures, symbols, script, characters, and
combinations thereof.

Issue
The Examiner has rejected all of the claims on appeal under 35 U.S.C.
§ 103(a) as obvious in view of Kuske,1 Lash,2 and Brisebois3 (Answer 4).
The Examiner finds that “Kuske teaches a package for sanitary napkins
products, the package including at least one window” (id.), Lash teaches a
package containing “at least two different types of absorbent articles having
different physical properties” (id. at 5), and Brisebois teaches “individually
wrapped sanitary napkins . . . identified by an indication means disposed on
the respective wrappers” (id. at 6). The Examiner concludes that it would
have been obvious to package at least two types of sanitary napkins,
individually wrapped and marked with identifiers, in Kuske’s windowed
package because the claimed product simply combines known elements for
their known functions and provides predictable results (id. at 7).

1 Kuske et al., US 6,318,555 B1, Nov. 20, 2001
2 Lash et al., US 5,897,542, Apr. 27, 1999
3 Brisebois et al., US 6,454,095 B1, Sept. 24, 2002
Appeal 2009-015368
Application 10/719,321

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Appellant contends that neither Kuske nor Lash would have suggested
putting different types of absorbent articles in a package with a window
(Appeal Br. 3-4) and that even if Brisebois’ sanitary napkin was placed in
Kuske’s package, only the information element of one type of sanitary
napkin would be visible through the window (id. at 5).
Findings of Fact
1. Kuske discloses a packaging bag having walls that define an
interior space; a “stack of articles are contained in the interior space, and
each of the articles includes a front panel and a back panel with a graphic on
one of the panels” (Kuske, col. 1, ll. 38-43).
2. “One of the walls has a window having a periphery substantially
framing at least a portion of the graphic” (id. at col. 1, ll. 43-45).
3. Kuske discloses that its bag is suitable for packaging feminine care
products (id. at col. 2, l. 47).
4. Kuske discloses that the article in its bag “could have another
graphic on [its] back panel. . . . In this case, the opposite end wall . . . would
also have a window.” (Id. at col. 5, ll. 29-35.)
5. Kuske discloses that its windowed bag “provides the feature of
permitting a user . . . to visually see or perceive a component, or a portion
thereof, of the article that they are purchasing, which is particularly desirable
when the articles are packaged in a bag” (id. at col. 5, ll. 59-62).
6. Lash discloses a package containing at least two types of absorbent
articles with different absorbent capacities (Lash, col. 1, l. 65 to col. 2, l. 4).
7. Lash uses the term “absorbent articles” to refer to “devices which
absorb and contain body exudates . . . which are placed against or in
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Application 10/719,321

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proximity to the body of the wearer to absorb and contain the various
exudates” (id. at col. 2, ll. 28-32).
8. Lash discloses that including absorbent articles with different
absorbent capacities in the same package provides “convenience and ease of
application by the consumer” (Lash, col. 9, l. 46).
9. Brisebois discloses that sanitary napkins are made with different
absorption capacities (Brisebois, col. 1, ll. 43-54).
10. Brisebois discloses individually packaged sanitary napkins in
which the individual package includes information regarding the
characteristics of the packaged sanitary napkin (id. at col. 2, ll. 50-60), such
as its absorption capacity (id. at col. 3, ll. 20-24).
Analysis
We agree with the Examiner that the cited references would have
made obvious the product of claim 1 on appeal: Brisebois teaches
individually wrapped sanitary napkins marked to indicate their absorption
capacity, Lash teaches packaging absorbent articles having different
absorbent capacities in the same package to provide convenience, and Kuske
teaches windowed packaging for feminine care products to allow the user to
see the packaged products. Kuske also teaches that its packaging can have
two windows to allow viewing of two different graphics. We agree with the
Examiner that, based on these teachings, it would have been obvious to
package two types of individually wrapped and marked sanitary napkins,
having different absorption capacities, in a package having windows that
allow viewing the markings on the two different types of sanitary napkins in
the package.
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Appellant argues that neither Kuske nor Lash recognize the problem
consumers have in consuming different types of absorbent articles packed in
the same package, or in identifying the types of absorbent articles contained
in a single package at the point of sale (Appeal Br. 3-4), and therefore would
not “motivate one to arrive at the presently claimed combination to address
such problems” (id. at 4).
This argument is unpersuasive. “The test for obviousness is what the
combined teachings of the references would have suggested to one of
ordinary skill in the art.” In re Young, 927 F.2d 588, 591 (Fed. Cir. 1991).
See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419-20 (2007) (“[A]ny
need or problem known in the field of endeavor at the time of invention and
addressed by the patent can provide a reason for combining the elements in
the manner claimed.”). For the reasons discussed above, we conclude that
the teachings of Kuske, Lash, and Brisebois, considered together, would
have made it obvious to combine the features of the instantly claimed
product.
Appellant also argues that only the window on the front of Kuske’s
package “is designed to frame the graphic on the absorbent article” (Appeal
Br. 4), and that even if different types of wrapped and marked sanitary
napkins were placed in Kuske’s package “only the element of information of
one type of sanitary napkin of Brisebois et al. would be visible through the
visual display feature of Kuske et al.” (id. at 5).
This argument is also unpersuasive. Kuske expressly discloses that
its package can include a second window to display a graphic different from
the one displayed through the front window (FF 4). Thus, it would have
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Application 10/719,321

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been obvious to include different types of wrapped and marked sanitary
napkins in Kuske’s package, arranged so that the markings of the two types
were each visible through one of the windows.
SUMMARY
We affirm the rejection of claims 1-3 and 5-7 under 35 U.S.C.
§ 103(a) based on Kuske, Lash, and Brisebois.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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