Ex Parte Loyd et al

Board of Patent Appeals and Interferences

May 2, 2012

11321263 (B.P.A.I. May. 2, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ADRIENNE RAE LOYD, MARCUS DAVID WEIHER,
CARRIE NICOLE PATERAS, DANIEL THOMAS LABASH,
THOMAS W. VANDENBOGART,
and GARY JOHN BORKOWSKI
__________

Appeal 2011-001167
Application 11/321,263
Technology Center 3700
__________

Before DEMETRA J. MILLS, ERIC GRIMES, and JACQUELINE
WRIGHT BONILLA, Administrative Patent Judges.

BONILLA, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims directed to a
packaged tampon and applicator assembly comprising a wrapper having a
line of weakness that facilitates tearing of the wrapper. 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 1-3, 5-7, 11-18, 20-22, and 24 are on appeal, with claims 1, 16
and 20 being independent. Claim 1 is representative and reads as follows
(emphasis added):
1. A packaged tampon and applicator assembly comprising:
a tampon and applicator assembly comprising a tampon and an
applicator assembled together with the tampon and adapted to
facilitate insertion of the tampon in a user; and
a wrapper having a longitudinal axis, a transverse axis, an
interior space and a sealed edge sealingly enclosing the tampon and
applicator assembly in said interior space in a sealed configuration of
the wrapper, said wrapper having a line of weakness formed therein at
least in part inward of said sealed edge and in direct contact with the
interior space of the wrapper in the sealed configuration thereof, the
line of weakness having a longitudinal component extending
longitudinally of the wrapper and a transverse component extending
transversely of the wrapper, said line of weakness being adapted to
facilitate tearing of the wrapper along said line of weakness to
facilitate opening a portion thereof to provide an opening in said
wrapper through which the tampon and applicator assembly is
removed from the wrapper, said wrapper being further configured to
inhibit separation of said opened portion from the wrapper, the
remainder of the wrapper defining a pocket sized for receiving the
entire applicator therein following use of the applicator to insert the
tampon in the user.
Independent claims 16 and 20 likewise recite a packaged tampon and
applicator assembly comprising a wrapper having a “line of weakness
having a longitudinal component extending longitudinally of the wrapper
and a transverse component extending transversely of the wrapper.”
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The claims stand rejected under 35 U.S.C. § 103(a) as being obvious
over Simonsen et al. (U.S. Pat. No. 6,478,763 B1, issued Nov. 12, 2002).
Issue
Does the Examiner establish a prima facie case that Simonsen
discloses or suggests a “line of weakness having a longitudinal component
extending longitudinally of the wrapper and a transverse component
extending transversely of the wrapper” as recited in the pending independent
claims?
Findings of Fact
1. The instant Specification describes a wrapper having a longitudinal
axis, a transverse axis, an unopened length, a width, as well as a line of
weakness formed to facilitate tearing of the wrapper. (Spec. 4, [0010],
[0011].)
2. The instant Specification defines “line of weakness” to mean:
any defined (e.g., intended) structural feature which weakens the
wrapper 20 along a predetermined path so that the wrapper 20 is more
readily ruptured, or torn, upon application of a tearing force along the
line of weakness 50, 51 and is not limited to perforations. For
example, in other embodiments the lines of weakness 50, 51 may
comprise a plurality of separation points, a score line, a breakaway
line or areas, a chain stitch, a thinning of the wrapper material or other
suitable line of weakness. The lines of weakness 50, 51 may be
suitably formed by partial pressure cutting, partial ultrasonic cutting,
partial thermal deformation, mechanical thinning, or other suitable
techniques.
(Id. at 11, [0037]; see also Figures 1 and 3.)
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3. The Specification describes a longitudinal axis “LA” and a transverse
axis “TA.” (Id. at 9-10, [0034].) As taught in the Specification, a line of
weakness (50 in Figure 1) may include a transverse component (50A in
Figure 1) and a longitudinal component (50B in Figure 1). (Id. at 11,
[0038], 12-13, [0039]; see also transverse component 51A and longitudinal
component 51B in Figure 3; transverse component 550A and longitudinal
component 550B in Figure 11.) As shown in Figures 1, 3 and 11 of the
Specification, the transverse and longitudinal components are at right angles
to each other and are both part of, i.e., in the same plane as, the line of
weakness. By contrast, Figure 6 shows a line of weakness 150 that does not
include a transverse component. (Id. at 16, [0045].)

Figure 1 depicts a perspective view of one embodiment of a packaged
tampon and applicator assembly that is sealingly enclosed within a wrapper.
Figure 6 depicts a front view of another embodiment of a wrapper for a
packaged tampon and applicator assembly.
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4. Simonsen describes a packaged tampon and applicator assembly
comprising a wrapper. (Simonsen, col. 5, ll. 24-50; see also Figures 1-8.)
Figures 5A and 5B show certain embodiments:

Figures 5A and 5B in Simonsen each depict side views of alternative
embodiments of an individual package with a tampon residing therein.
5. Simonsen indicates that “X” in the figures refers to a lateral x axis,
while “Y” points to a longitudinal y axis. (Id. at col. 5, ll. 24-28.) Figures in
Simonsen point to “a rupturable seal line 5” (id. at col. 7, l. 17), “permanent
seals 13” (id. at col. 8, l. 18), “stop seals 26 placed adjacent to the rupturable
seals and adjacent to the permanent seals” (id. at 43-45), “a disruptive
member 14 or tear member 14 for opening the individual package 2” (id. at
col. 9, ll. 1-3), “a tear strip 16” (id. at l. 9), and “a seal line which constitutes
a line of weakness which can be in the form of perforations 18” (id. at 21-
24).
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6. Simonsen discloses that (emphasis added):
The disruptive member 14 is positioned adjacent to the top portion of
the individual package 2. The disruptive member 14 extends partially
along the top portion of the individual package 2. Preferably, the
disruptive member 14 extends substantially along the top portion of
the individual package 2. More specifically, the disruptive member 14
may comprise an opening device for opening the package 2. The
opening device may comprise a pull-string, a line of weakness and/or
perforations. Herein, the individual package may be, but is not
necessarily re-sealable.
(Id. at col. 6, ll. 8-17; see also col. 9, ll. 7-10.)
7. In relation to Figures 5A and 5B, Simonsen states a “user grasps the
angled portion 17 of the tear member 14 and pulls the tear member 14 long
the line of the tear strip 16, which is preferably a weakened and/or
perforated portion.” (Id. at col. 9, ll. 13-16.) In addition:
The individual package 2 preferably comprises a seal line which
constitutes a line of weakness which can be in the form of perforations
18 that are positioned along the upper portion of the package 2 (FIGS.
5A-5B). In addition to the perforations 18, the package must also
contain a rupturable seal line 5 (FIG. 5B). The rupturable seal line 5
serves as a tamper-evident opening feature.
(Id. at ll. 21-27.)
8. While not shown in Figures 5A and 5B, Figure 3 in Simonsen points
to “an optional re-sealing member 11” which “may be selected from the
group consisting of re-fastenable tape, thermal bonds, pressure sensitive
tapes, pressure sensitive glues, and combinations thereof.” (Id. at col. 8, ll.
4-16; col. 6, ll. 2-5.)
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9. In relation to a re-sealable aspect of the wrapper, Simonsen also
teaches that:
The consumer may use the package for an applicator and/or a
used tampon for disposal. The consumer may use the loose ends of
the wrapper to secure the inserted used applicator by 1) tying the ends
together (FIG. 2); 2) pressure sensitive adhesive; 3) Zipper in groove
fastener (ZIP LOK FASTENER) (FIGS. 5A and 5B) such as a ZIP
LOK Fastener; 4) VELCRO FASTENER (such as hook and loop);
and 5) tucking the flaps or hood around the contained contents (FIG.
1, 4, and 7).
(Id. at col. 8, ll. 59-67.) Consistent with this teaching, Simonsen states that
“[t]o ensure a hygienic reseal, several closing mechanisms can be used. For
instance, … FIGS. 5A and 5B show a ziplock bag execution.” (Id. at col. 9,
ll. 59-67.)
Principles of Law
An examiner bears the initial burden, on review of the prior art or on
any other ground, of presenting a prima facie case of unpatentability. In re
Oetiker, 977 F.2d 1443, 1445 (1992). If the examiner fails to establish a
prima facie case of unpatentability in the first instance, the rejection is
improper and must be reversed. Id.; In re Rijckaert, 9 F.3d 1531, 1532 (Fed.
Cir. 1993).
The purpose of giving claims their broadest reasonable interpretation
is to reduce “the possibility that claims . . . will be given broader scope than
is justified” by the prior art. In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir.
2004) (internal citations omitted). The purpose is not to stretch the
interpretation of a claim far beyond what would be reasonably understood by
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the skilled worker in the light of the specification, to read on a prior art
structure which could possibly, but not reasonably, be covered by it.
Analysis
All pending independent claims recite a wrapper having a line of
weakness that has “a longitudinal component extending longitudinally of the
wrapper and a transverse component extending transversely of the wrapper.”
With regard to this element, the Examiner states that “Simonsen discloses
that the wrapper may include a zipper in groove fastener such as a ZIP LOK
fastener (but not solely a ZIP LOK fastener)” and that such “fasteners
operate by mating grooves and ribs (longitudinal and transverse
components) that are brought into engagement with one another by a
zipper.” (Ans. 4.)
According to the Examiner, “it would be obvious to one of ordinary
skill in the art to modify the article of Simonsen such that the line of
weakness does have such longitudinal and transverse components
contributed by a zipper and groove fastener” as a way to “provide a means
for reclosing the wrapper for disposal of a used applicator therein.” (Id. at 4-
5.) More specifically, the Examiner asserts that the line of weakness would
have “a longitudinal component, the longitudinal components of the zipper
track and the groove, and a transverse component, the component of the
zipper extending outward from the plane of the package material and zipper
track toward the groove.” (Id. at 13.) In other words, the Examiner
interprets the phrase “line of weakness” in Appellants’ claims as
encompassing a zipper in a groove fastener, such as a ZIP LOK fastener.
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In light of the claim language itself and the instant Specification, we
disagree with the Examiner that the phrase “line of weakness” can
reasonably be read this broadly. The Specification defines a “line of
weakness” as “any defined (e.g., intended) structural feature which weakens
the wrapper 20 along a predetermined path so that the wrapper 20 is more
readily ruptured, or torn, upon application of a tearing force along the line of
weakness.” (FF 2.) Consistently, the Specification describes embodiments
as including “a plurality of separation points, a score line, a breakaway line
or areas, a chain stitch, a thinning of the wrapper material.” (Id.) Likewise,
the Specification teaches that lines of weakness may be formed “by partial
pressure cutting, partial ultrasonic cutting, partial thermal deformation,
mechanical thinning, or other suitable techniques.” (Id.)
Nothing in the Specification’s definition of a “line of weakness,” nor
other disclosure in the Specification, suggests that a line of weakness may
encompass a zipper. A zipper opens and closes, but is not a point of
“weakness” per se. A zipper is not designed to break, rupture or tear, but
rather to open and then close again intact.
Moreover, Simonsen actually refers to a line of weakness expressly,
but in a different context. Specifically, Simonsen describes a line of
weakness as being part of an opening device in a disruptive member 14, as
shown for example in Figures 5A and 5B as “perforations 18” in “tear
member 14” and “tear strip 16.” (FF 7.) Simonsen indicates with regard to
Figures 5A and 5B that the wrapper can reseal via a zipper in a groove
fastener (e.g., via a “ziplock bag execution”) as a way to secure a used
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applicator inside the wrapper for disposal. (FF 9.) That said, Simonsen does
not state that the zipper is the line of weakness per se.
Likewise, Simonsen does not suggest using a zipper in a groove
fastener, such as a ZIP LOC fastener, in place of perforations 18 or a “pull-
string, a line of weakness and/or perforations” in an opening device in a
disruptive/tear member 14. (FF 7-9.) Instead, Simonsen discusses
disruptive/tear member 14 separately from “rupturable seal line 5” and
“resealing member 11.” (FF 5-9.) Reading Simonsen as a whole, the
description of zippers and ZIP LOC fasteners may be relevant to a “resealing
member 11” or perhaps a “rupturable seal line 5,” but not a line of weakness.
In addition, the Examiner assumes that a zipper in a groove fastener
has “a longitudinal component extending longitudinally of the wrapper and a
transverse component extending transversely of the wrapper” as recited in
claim 1. Specifically, according to the Examiner, the longitudinal
component is the zipper track and the groove, and the transverse component
is “the component of the zipper extending outward from the plane of the
package material and zipper track toward the groove.” (Ans. 13.) Thus, the
Examiner interprets the “transverse component” as encompassing something
that extends outside of the plane of the wrapper itself.
We find the Examiner’s claim interpretation in this regard to be
unreasonably broad. As mentioned above, the Specification refers to a
transverse component (50A, 51A, 550A in Figures 1, 3 and 11) and a
longitudinal component (50B, 51B, 550B) as separate portions of a single
line of weakness, where each component is at a right angle to each other but
still in the plane of the line of weakness in the wrapper itself. (FF 3.) In
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light of these disclosures and the plain meaning of the claim language itself
when read as a whole, we interpret “transverse component” in claim 1 as
being in a line that is at a right angle to the “longitudinal” component, but is
still part of, i.e., in the same plane as, the “line of weakness” itself.
Consistent with this definition, both the Specification and Simonsen
refer to two relevant axes as being at right angles to each other but in the
same plane as the wrapper. (FF 3; 5.) The Examiner has not pointed to
anything in Simonsen that suggests placing portions of either a zipping
fastener (such as a ZIP LOC fastener) or perforations 18 on two different
axes of the wrapper as discussed above. Simonsen states that “disruptive
member 14 is positioned adjacent to the top portion of the individual
package 2,” and that “disruptive member 14 extends partially along the top
portion of the individual package 2.” (FF 6.) Consistent with such
teachings, Figures 5A and 5B show disruptive/tear members 14 (including
perforations 18) on one side of the top portion of the package going along a
single axis, i.e., longitudinally in relation to the wrapper.
The Examiner points to nothing in Figures 5A and 5B, or elsewhere in
Simonsen, that suggests placing a line of weakness, such as perforations 18,
along both a longitudinal axis and a transverse axis. Simply referring to a
zipping fastener (such as a ZIP LOC fastener) is insufficient to suggest this
disclosure by itself. A zipper opens along a single line, absent some reason
to alter the zipper so that it bends and functions (i.e., opens and reseals)
properly when bent at a right angle. The Examiner points to no such
reasoning in Simonsen.
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Conclusion of Law
We conclude that the Examiner fails to establish a prima facie case
that Simonsen discloses or suggests a “line of weakness having a
longitudinal component extending longitudinally of the wrapper and a
transverse component extending transversely of the wrapper” as recited in
pending independent claims.

SUMMARY
We reverse the rejection of claims 1-3, 5-7, 11-18, 20-22, and 24
under 35 U.S.C. § 103(a) as being obvious over Simonsen.

REVERSED

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