Ex Parte Kuen et al

Board of Patent Appeals and Interferences

Aug 31, 2009

10736069 (B.P.A.I. Aug. 31, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte DAVID ARTHUR KUEN,
KRISTI JO BRYANT, MARK STEVEN FRANKE,
CYNTHIA HELEN HENDREN, RICHARD JOSEPH KAMPS,
LISA NICKEL, KATHERINE CAROL WHEELER, and
YEE YANG
__________

Appeal 2009-0027081,2
Application 10/736,069
Technology Center 3700
__________

Decided: August 31, 2009
__________

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

PRATS, Administrative Patent Judge.

1 The real party in interest is Kimberly-Clark Worldwide, Inc.
2 This appeal is related to Appeal No. 2008-4589 (App. Ser. No. 10/735,978)
(App. Br. 1).
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DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an
absorbent garment. The Examiner has rejected the claims as obvious. We
have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
The Specification discloses an absorbent garment that resembles
conventional clothing “such as shorts (e.g., boxer shorts, gym shorts,
running shorts, etc.), skirts, skorts (i.e., a combination of a skirt and a pair of
shorts), swim trunks and the like, while providing the functions of
conventional absorbent articles, such as taking in and retaining body
exudates released by the wearer” (Spec. [0039]). The absorbent garment
includes an inner absorbent assembly attached to a waist belt which is in turn
attached to an outer garment shell (see id. at [0005]-[0006]).
Appellants’ Figure 8, reproduced below, shows one embodiment of
the garment:

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Figure 8 shows the absorbent assembly 224 “releasably attached to an
inner surface of the waist belt 274 by fastening components 370 attached to
the outer surface of front and back waist ends 338, 340 of the absorbent
assembly so that [the] absorbent assembly is generally disposed between the
waist belt and the wearer” (Spec. [00101]).
Figure 8 also shows garment shell 222 “releasably attached to the
outer surface of the waist belt 274, such as by fastening components 374
attached to the inner surface of the garment shell generally at the front and
back waist ends 256, 258 thereof” (id. at [00103]). The Specification
discloses that “the fastening components 374 of the illustrated embodiment
comprise hook fasteners and the waist belt 274 material provides a suitable
loop material for releasable attachment to the hook fastener” (id.).
Claims 1, 3-36, and 38-41 are pending and on appeal (App. Br. 2).
Claims 1 and 36, the independent claims, read as follows:
1. An absorbent garment for personal wear about the
wearer’s waist, said absorbent garment comprising:
an absorbent assembly constructed to take in and
retain body exudates released by the wearer, the absorbent
assembly having an inner surface adapted for contiguous
relationship with the wearer’s body, an outer surface, a front
waist region, a back waist region, a crotch region extending
longitudinally between and interconnecting the front waist
region and the back waist region, a front waist end and a back
waist end;
a garment shell configured for encircling the
wearer’s waist, said garment shell having a front waist region, a
front waist end at said front waist region, a back waist region,
and a back waist end at said back waist region, the absorbent
assembly being disposed generally within the garment shell,
and
a waist belt configured for wear about the wearer’s
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waist, the absorbent assembly being releasably and refastenably
attached generally at the front and back waist regions thereof to
the waist belt, the garment shell being releasably and
refastenably attached generally at the front and back waist
regions of said garment shell to the waist belt whereby the front
waist region of the garment shell is in opposed relationship with
the front waist region of the absorbent assembly and the back
waist region of the garment shell is in opposed relationship with
the back waist region of the absorbent assembly.

36. A method for placing an absorbent garment on a
wearer’s waist, said method comprising:
extending a waist belt about the wearer’s waist
such that an overlapping end portion of the belt overlaps an
underlying portion of the belt;
releasably attaching the overlapping end portion of
the belt to the underlying portion of said belt to secure the belt
on the wearer’s waist;
releasably and refastenably attaching an absorbent
assembly to said waist belt, the absorbent assembly being
constructed to take in and retain body exudates released by the
wearer, the absorbent assembly having an outer surface and an
inner surface adapted for contiguous relationship with the
wearer’s body, said absorbent assembly further having a front
waist region, a back waist region, a crotch region extending
longitudinally between and interconnecting the front waist
region and the back waist region, a front waist end at said front
waist region and a back waist end at said back waist region; and
releasably and refastenably attaching a garment
shell to the waist belt, the absorbent assembly being configured
for being disposed within the garment shell, said garment shell
having a front waist region adapted for generally opposed
relationship with the front waist region of the absorbent
assembly and a back waist region adapted for generally
opposed relationship with the back waist region of the
absorbent assembly.

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The Examiner cites the following documents as evidence of
unpatentability:
New US H1440 May 2, 1995
Rosch US 6,115,847 Sep. 12, 2000
Christoffel US 2002/0087137 A1 Jul. 4, 2002

Claims 1, 3-36, and 38-41 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Rosch, Christoffel, and New (Ans. 3-8).
OBVIOUSNESS
ISSUE
The Examiner cites Rosch as disclosing “an active wear trunk garment
110 having a liquid-permeable trunk cover 114 . . . [with] waste containment
structure 142” (Ans. 3). The Examiner finds that “[w]aist elastics 143, 145
(collectively, waist belt) are an integral portion of cover 114 in the waist
regions 131 and 133 and that garment 110 is joined to said structures” (id.).
The Examiner further finds that Rosch’s “trunk cover 114 is joined to elastic
members 143, 145 at the waist regions” (id. at 4). Therefore, the Examiner
concedes, “Rosch does not teach that trunk cover 114 is releasably attached
at the front and rear waist regions” (id.).
The Examiner cites Christoffel and New to meet the limitations
requiring the garment to have a belt and inner absorbent structure which are
releasably and refastenably attached to each other and to the outer garment
shell (id.). Specifically, the Examiner cites Christoffel as disclosing a girl’s
swimsuit that has an “absorbent pant/bottom portion 98 [which] is releasably
attached to the upper portion/bodice 42 at the front and rear waist areas via
hook and loop fasteners 92 to secure the pant portion and upper portion
about the waist of the wearer and for greater ease in applying and removing
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said swimsuit” (id. (citing Christoffel [0071]-[0074])). Based on these
teachings the Examiner concludes that an ordinary artisan would have
considered it obvious to use hook and loop fasteners to releasably and
refastenably attach “outer cover 114 and garment 110 taught by Rosch so as
to more easily apply and remove garment 110 as taught by Christoffel” (id.).
The Examiner cites New as disclosing an absorbent garment with an
absorbent assembly and a waist belt in which “the waist belt is releasabl[y]
and refastenably attached to the assembly” (id.). The Examiner cites New as
teaching that its detachable belt “provides a more contoured fit for a user and
thus is less noticeable under clothing” (id.).
Therefore, the Examiner concludes, an ordinary artisan would have
considered it obvious “to modify the waistbelt taught by Rosch by
substituting a detachable belt as taught by New to provide a more
comfortable and discreet fit for the user” (id.). The Examiner further
reasons that combining the teachings of Rosch, Christoffel, and New “would
therefore yield an absorbent garment in which the absorbent assembly is
releasably and refastenably attached generally at the front and back regions
to a waist belt and a garment shell that is releasably and refastenably
attached at the front and back waist regions to the waist belt” (id.).
Appellants contend that whether Rosch, Christoffel, and New are
“considered alone or in combination the references fail to show or suggest
an absorbent garment in which an absorbent assembly and a garment shell
are each releasably and refastenably attached to a waist belt” (App. Br. 6).
Rather, Appellants argue, Rosch discloses that its inner garment is
non-refastenably bonded to the waist portion of the outer shell garment (id.
at 7).
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Appellants urge that New fails to suggest modifying the manner in
which Rosch’s inner absorbent component is bound to the outer garment
shell because New does not disclose attaching the belt of its absorbent
device to any other garment (id. at 8-9). Appellants argue that Christoffel
also fails to suggest a releasable/refastenable connection between the inner
waist portion of an absorbent assembly and an outer shell because
Christoffel only teaches such a connection between the bodice and lower
portion of a disposable swimsuit at the suit’s front waist portion, and not
between the inner and outer portions of the suit (id. at 9-10).
In view of the positions advanced by Appellants and the Examiner,
the issue on appeal is whether the Examiner erred in concluding that an
ordinary artisan would have considered a garment, as recited in claim 1 and
applied in claim 36, which has an outer shell, an inner waist portion, and an
inner absorbent assembly, each of which are releasably and refastenably
attached to each other at the front and rear waist portions of the garment,
obvious in view of a disclosure of an active wear trunk having an inner
absorbent assembly non-releasably and non-refastenably attached to the
waist of the outer shell, a disclosure of a disposable girl’s bathing suit that
uses releasable and refastenable attachment means to allow release and
reattachment of the upper and lower portions of the swimsuit for ease of
applying and removing the suit, and a disclosure of an absorbent article that
includes a waist belt portion to which the absorbent portion is releasably
attached.
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FINDINGS OF FACT (“FF”)
1. Rosch discloses “a disposable garment that may be adapted to provide
containment and absorbency of waste matter while being useful as active
and swim wear” (Rosch, col. 1, ll. 8-10).
2. One embodiment of Rosch’s garment is a “trunk” that has an outer
shell, or “trunk cover” 114 (Rosch, col. 9, ll. 60-61), and an inner “pant
structure” 112 (id. at col. 10, ll. 26-27), with a “waste containment structure”
142 (id. at col. 13, ll. 20-21) disposed within the inner pant structure 112
(see Figures 4 and 5).
3. Regarding the attachment of the outer trunk cover 114 to the waste
absorbent-containing inner pant structure 112, Rosch discloses that “[t]he
waist elastic members 143 and 145 [of the inner pant structure] may be
stretch bonded to the waist regions 131 and 133 of the trunk cover 114 or
bonded in a relaxed state to a gathered portion [of] the waist regions 131 and
133 of the trunk cover 114” (Rosch, col. 10, ll. 33-36; see also Figure 4).
4. Regarding the attachment of the outer trunk cover 114 to the waste
absorbent-containing inner pant structure 112, Rosch also states:
The waist regions 131 and 133 and the waist elastic members
143 and 145 are desirably bonded together by adhesives,
however other methods of bonding discussed above can be
utilized. The waist regions 131 and 133 of the trunk cover 114
may be attached to the waist elastic members 143 and 145
around the entirety of the waist opening 134 or only a portion
thereof.

(Rosch, col. 10, ll. 42-49.)
5. Rosch discloses:
[A] number of modifications and changes may be made without
departing from the spirit and scope of the present invention.
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For instance, alternative or optional features described as part of
one embodiment can be used to yield another embodiment.
Additionally, only one rather than both ends of the waste
containment structure can be elastically connected to the cover.

(Rosch, col. 16, ll. 59-65.)
6. Christoffel discloses:
A disposable, one-piece swimsuit for girls includes a bodice
attached to a chassis. The bodice is designed to provide upper
torso coverage while the chassis can include absorbent and
containment features. The upper torso coverage contributes to
social decency and also protects the wearer’s skin against
excessive exposure to the sun. The absorbent and containment
features can either be integrated within the chassis or can be in
the form of a separate, pant-like, absorbent garment covered by
the chassis.

(Christoffel, abstract.)
7. Christoffel discloses that its swimsuit “is disposable, such that it can
be worn for a limited time, until the garment is soiled or for the duration of
the wearer’s water activities” (Christoffel [0006]).
8. Christoffel discloses that in one embodiment of its swimsuit “[a]
refastenable fastening system 92, such as a hook and loop fastener, can be
applied to the front region 44 of the bodice 42 along the waist region 24 and
to the front region 28 of the chassis 22 along the waist region 24, such that
the bodice 42 and the chassis 22 can be releasably engaged to one another”
(Christoffel [0071]; see also Figures 18 and 19).
9. Christoffel discloses another embodiment of its swimsuit in which
“the chassis 22 is a pant-like absorbent product 98 and is attached to the
bodice 42” (Christoffel [0072]; see also Figures 21 and 22). Regarding this
embodiment, Christoffel discloses that “either elastic bands or strings or
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other forms of refastenable fastening systems 92 can be used at the sides of,
or around the back of, the wearer’s mid-torso region to secure the bodice 42
about the wearer’s mid-torso” (id.).
10. Christoffel discloses:
In each of the embodiments of the invention, a refastenable
fastening system 92 can be included for greater ease in applying
and removing the swimsuit 20. For example, the front strap
portion 68 can be releasably attached to the back strap portion
70 using a refastenable fastening system 92, such as a hook and
loop fastener, as shown in FIG. 21.

(Christoffel [0073].)
11. Christoffel discloses:
[I]n each of the embodiments of the invention, bonding
between the bodice 42 and the chassis 22, and/or between front
and back regions 44, 46, 28, 30 of the bodice 42 and chassis 22,
can be accomplished using attachment means known to those
skilled in the art such as adhesive, thermal or ultrasonic
bonding.

(Christoffel [0074].)
12. New discloses:
A detachable two piece absorbent garment 10 [is]
suitable for use as, but not limited to, an incontinence aid. The
garment 10 features a belt 12 and a disposable assembly 14.
The belt 12 may be made of receiving material bounded by two
laterally extending edges 16. The receiving material is suitable
for refastenably attaching desired portions of the belt 12 to
complementary hook style mechanical fasteners.

(New, col. 3, ll. 29-37; see also Figure 1.)
13. New discloses that the “‘belt’ is the component of the garment 10 to
which both waist margins 32 and 34 of the disposable assembly 14 are
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attached which encircles the waist of the wearer, and holds the disposable
assembly 14 against the wearer (id. at col. 9, ll. 63-67).
14. New discloses that, because of the belt’s dimensions and arcuate
shape, it “more closely fits the wearer and is less noticeable under the
wearer’s clothing under static conditions” (id. at col. 1, ll. 62-64). The belt
also “does not interface with portions of the wearer’s body which have
relatively large degrees of motion during typical body movement under
dynamic conditions [and] . . . enhances comfort while the absorbent garment
is worn” (id. at col. 1, l. 65 through col. 2, l. 2).
PRINCIPLES OF LAW
In proceedings before the Patent and Trademark Office,
the Examiner bears the burden of establishing a prima facie
case of obviousness based upon the prior art. “[The Examiner]
can satisfy this burden only by showing some objective
teaching in the prior art or that knowledge generally available to
one of ordinary skill in the art would lead that individual to
combine the relevant teachings of the references.”

In re Fritch, 972 F.2d 1260, 1265 (Fed. Cir. 1992) (citations omitted,
bracketed material in original).
Emphasizing a flexible approach to the obviousness question, in KSR
Int’ l Co. v. Teleflex Inc., 550 U.S. 398 (2007), the Supreme Court
nonetheless similarly noted:
[I]t can be important to identify a reason that would have
prompted a person of ordinary skill in the relevant field to
combine the elements in the way the claimed new invention
does . . . because inventions in most, if not all, instances rely
upon building blocks long since uncovered, and claimed
discoveries almost of necessity will be combinations of what, in
some sense, is already known.

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Id. at 418-419 (emphasis added); see also id. at 418 (requiring a
determination of “whether there was an apparent reason to combine the
known elements in the fashion claimed by the patent at issue”) (emphasis
added).
Ultimately, therefore, “[i]n determining whether obviousness is
established by combining the teachings of the prior art, the test is what the
combined teachings of the references would have suggested to those of
ordinary skill in the art.” In re GPAC Inc., 57 F.3d 1573, 1581 (Fed. Cir.
1995) (internal quotations omitted).
ANALYSIS
We agree with Appellants that the Examiner has not made a prima
facie case that claims 1 and 36 would have been obvious to one of ordinary
skill in the art. Claim 1 requires the garment’s inner absorbent assembly to
be “releasably and refastenably attached generally at the front and back
waist regions thereof to the waist belt,” and the garment shell to be
“releasably and refastenably attached generally at the front and back waist
regions of said garment shell to the waist belt.” Similarly, claim 36 requires
the garment to be applied to the user by “releasably and refastenably
attaching an absorbent assembly to said waist belt . . . and releasably and
refastenably attaching a garment shell to the waist belt.”
We acknowledge Rosch’s disclosure that the inner waste-absorbing
component of its disposable garment can be attached at only the front or rear
of the cover (FF 5), and that the inner portion of the garment can be attached
at a portion of, rather than the entire waistband (FF 4). However, we do not
agree with the Examiner that these disclosures would have taught an
ordinary artisan that “one end of the absorbent assembly is releasably and
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refastenably connected, as the only alternative to a non-refastenably
connected end is a refastenably connected end (which is inherently and
necessarily also releasably connected), since both ends must be somehow
connected to the cover as taught by Rosch” (Ans. 8).
In direct contradistinction to claims 1 and 36 and the Examiner’s
arguments, Rosch teaches that the inner waste absorbent-containing portion
of its garment should be attached to the outer cover using non-releasable and
non-refastenable attachments (FF 3). Moreover, the Examiner has not
adequately explained why Christoffel or New would have prompted an
ordinary artisan to modify this aspect of Rosch’s garment.
Christoffel discloses the use of releasable and refastenable attachment
means for connecting the upper and lower outer portions of a disposable
swimsuit for girls (FF 9). Christoffel also discloses that using such
releasable and refastenable attachment means can make the disposable
swimsuit easier to apply and remove (FF 10).
However, the Examiner does not point to any disclosure in Christoffel
suggesting that using releasable/refastenable components between the inner
absorbent component of the swimsuit’s pant portion and its outer shell, as
opposed to the suit’s upper and lower portions, would also render the suit
easier to apply and remove. We therefore do not agree with the Examiner
that Christoffel would have prompted an ordinary artisan to modify Rosch’s
direct teaching of using permanent bonding between the inner absorbent
component and outer garment shell, and instead use the
releasable/refastenable components recited in claims 1 and 36.
We note New’s disclosure that its belt can be releasably and
refastenably attached to the absorbent component of its device (FF 12, 13),
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and that a belt having the disclosed dimension is less obtrusive or more
comfortable when worn under clothing (FF 14). However, the Examiner
does not point to, and we do not see, any disclosure in New suggesting that
the belt should be attached to a garment worn outside the belt/absorbent
article assembly. We therefore do not agree with the Examiner that an
ordinary artisan would have been prompted to attach New’s belt to an outer
garment using releasable/refastenable components.
In sum, for the reasons discussed, we agree with Appellants that the
Examiner has not made a prima facie case that one of ordinary skill in the art
would have considered the product recited in claim 1, or the process recited
in claim 36, obvious in view of Rosch, Christoffel, and New. We are
therefore compelled to reverse the Examiner’s obviousness rejections of
claims 1 and 36, and their dependent claims.
REVERSED

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