Ex Parte Miyamoto

Board of Patent Appeals and Interferences

Dec 22, 2008

10324369 (B.P.A.I. Dec. 22, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte KOUICHI MIYAMOTO
__________

Appeal 2007-3151
Application 10/324,369
Technology Center 3700
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Decided: December 22, 2008
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Before TONI R. SCHEINER, DONALD E. ADAMS, and ERIC GRIMES,
Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a diaper,
which the Examiner has rejected as anticipated or obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We reverse.
STATEMENT OF THE CASE
The Specification discloses an absorbent article with an elasticized
outer leg cuff having, among other things, “a base and a gasket cuff
Appeal 2007-3151
Application 10/324,369

supported by the base at a joint of the base to the gasket cuff” (Spec. 3: 2-3).
The Specification’s Figure 2 is reproduced below:

The figure shows a cross-section of the disclosed diaper (id. at 5: 12-
13). The Specification describes some of the elements of Figure 2 as follows:
The side flap 44 has a proximal flap 74 and a distal flap 76. . . .
The elasticized outer leg cuff 42 has a base 68 and a gasket cuff
70 supported by the base 68 at a joint 72 of the base 68 to the
gasket cuff 70. The gasket cuff 70 . . . has an inner cuff 100
extending laterally inwardly from the joint 72 and an outer cuff
102 extending laterally outwardly from the joint 72.
(Id. at 5: 34 to 6: 5.) The Specification also states that the “side flap 44 has a
proximal flap 74 which is laterally proximate to the absorbent core 34 and a
distal flap 76 which extends laterally outwardly from the proximal flap 74”
(id. at 8: 22-24).
Claims 1-10 are pending and on appeal. Claim 1, the only
independent claim, reads as follows:
1. A disposable absorbent article having an inner surface, an outer surface, a
crotch region, longitudinal side edges and lateral end edges, and comprising
a liquid pervious topsheet, a liquid impervious backsheet, an absorbent core
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Application 10/324,369

disposed therebetween, and a side flap extending laterally outwardly from
the absorbent core and having a proximal flap and a distal flap, the absorbent
article further comprising an elasticized outer leg cuff disposed adjacent to
the longitudinal side edge in the crotch region and having a base and a
gasket cuff supported by the base at a joint of the base to the gasket cuff, the
gasket cuff being provided with an elastic material and having an inner cuff
extending laterally inwardly from the joint and an outer cuff extending
laterally outwardly from the joint, wherein
the base comprises the proximal flap,
the gasket cuff comprises the distal flap and is formed by folding the distal
flap at least twice laterally inwardly toward the longitudinal centerline of the
absorbent article, and the gasket cuff and the base are joined at the joint
positioned between the inner cuff and the outer cuff.

The claims stand rejected as follows:
• Claims 1-5, 7, and 8 under 35 U.S.C. § 102(b) as anticipated by
Foreman;1 and
• Claims 6, 9, and 10 under 35 U.S.C. § 103(a) as obvious in view of
Foreman.
ANTICIPATION
The Issue
The Examiner finds that Foreman discloses a diaper that meets all the
limitations of claims 1-5, 7, and 8 (Answer 3-4).
Appellant contends that the diaper disclosed by Foreman lacks (a) a
gasket cuff that includes an inner cuff extending laterally inward from a joint
between the gasket cuff and base, and (b) a gasket cuff formed by folding a
distal flap at least twice laterally inward (Appeal Br. 4-5).

1 Foreman, U.S. Patent 4,738,677, issued April 19, 1988.
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Application 10/324,369

The issue with respect to this rejection is: Has the Examiner shown
that Foreman discloses a diaper that comprises both a gasket cuff that
includes an inner cuff extending laterally inward from a joint between the
gasket cuff and base, and a gasket cuff formed by folding a distal flap at
least twice laterally inward?
Findings of Fact
1. Foreman discloses an absorbent article that includes a barrier cuff
adjacent to its longitudinal edges (Foreman, col. 2, ll. 7-14) and can include
“gasketing cuffs positioned adjacent the barrier cuffs to form an additional
fluid impervious barrier about the leg or waist of the wearer” (id. at col. 2, ll.
48-50).
2. Foreman’s Figure 2 is reproduced below:

Foreman states that the Figure shows a fragmentary sectional view of the
disclosed absorbent article (id. at col. 2, ll. 65-66).
3. Foreman describes some of the elements shown in Figure 2 as
follows:
The first barrier cuff 62 is formed by affixing portions of a
separate first barrier cuff member to the backsheet 42 . . . with
attachment means 88 such as adhesive. . . . This flap portion 74
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Application 10/324,369

[sic, 64?] of the first barrier cuff 62 and the backsheet 42 define
the side flap 58 and enclose the flap elastic members 60. . . .
The elastically contractible gasketing cuff 56 is thereby formed
by the side flap 58 and the flap elastic members 60.
(Id. at col. 4, ll. 33-47.)
4. The Examiner has provided an annotated version of Foreman’s
Figure 2, reproduced below:

(Answer 4.) The figure includes annotations that indicate that the Examiner
interprets (a) the two elements labeled “88” in the figure to be joints, (b) a
region of the top layer of gasketing cuff 56 that the Examiner interprets as an
“inner cuff [that] extends laterally inward from [a] joint,” and (c) the bottom
layer of gasketing cuff 56 to be a “portion of outer cuff [that] extends
laterally outward from [a] joint.” The annotations also state that a “1st fold
can include a portion or all of top edge to form inner cuff” and a “2nd fold
can include a portion or all of bottom edge to form outer cuff.”
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Application 10/324,369

5. The present Specification defines “lateral” as meaning “a line, axis
or direction which lies within the plane of the absorbent article that is
generally perpendicular to the longitudinal direction” (Spec. 5: 7-10).
6. The Specification defines “longitudinal” to mean “a line, axis or
direction in the plane of the absorbent article that is generally aligned with
(e.g., approximately parallel to) a vertical plane which bisects a standing
wearer into left and right body halves when the absorbent article is worn”
(id. at 5: 3-7).
Principles of Law
“It is axiomatic that, in proceedings before the PTO, claims in an
application are to be given their broadest reasonable interpretation consistent
with the specification and that claim language should be read in light of the
specification as it would be interpreted by one of ordinary skill in the art.”
In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983) (citation omitted).
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631
(Fed. Cir. 1987).
Analysis
The claims define an absorbent article that includes, among other
features, “a base and a gasket cuff supported by the base at a joint of the
base to the gasket cuff . . . and having an inner cuff extending laterally
inwardly from the joint” (claim 1). The Specification makes clear that
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Application 10/324,369

“laterally inwardly” means in the direction of the longitudinal center of the
diaper.
The Examiner has indicated the portion of Foreman’s diaper that she
interprets as meeting the “inner cuff” limitation of claim 1 (see annotated
Figure 2 above). The Examiner, however, interprets the “base” in
Foreman’s diaper as the point, near element 92, where the lowest edge is
connected to the gasket cuff. See Answer 7 (“Foreman discloses an
elasticized outer gasket cuff 56 that is supported by a base joint 88 (e.g.:
where the base/lowest edge is connected to the gasket cuff). It is noted that
‘joint’ is the point where the first fold of gasket cuff 56 meets the second
fold of gasket cuff 56 located near element 92 in annotated figure 2.”).
The portion of Foreman’s gasket cuff that the Examiner has labeled
“inner cuff extends laterally inward from joint” does not extend laterally
inwardly from the joint between the base and the gasket cuff (near element
92). The indicated portion does extend inwardly from a second element the
Examiner has labeled “joint” but that element is not “a joint of the base to
the gasket cuff,” as required by claim 1.
The Examiner has not established that Foreman discloses an absorbent
article comprising a gasket cuff that includes an inner cuff extending
laterally inwardly from the joint between the base and the gasket cuff, and
therefore has not shown that Foreman discloses an article meeting all of the
limitations of the claims on appeal.
OBVIOUSNESS
The Examiner rejected claims 6, 9, and 10 under 35 U.S.C. § 103(a)
as obvious in view of Foreman. Claims 6, 9, and 10 depend on claim 1. The
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Examiner relied on Foreman as teaching a diaper meeting the limitations of
claim 1, and concluded that the additional limitations recited in claims 6, 9,
and 10 would have been obvious based on Foreman (Answer 6-7).
For the reasons discussed above, we find that the diaper disclosed by
Foreman does not meet all of the limitations of claim 1. The Examiner has
not provided any basis on which to conclude that the limitations of claim 1
(and therefore of claims 6, 9, and 10 as well) that are missing from Foreman
would have been obvious to those of ordinary skill in the art. The Examiner
therefore has not established a prima facie case that claims 6, 9, and 10
would have been obvious based on Foreman.
CONCLUSIONS OF LAW
The Examiner has not shown that Foreman discloses or would have
suggested a diaper that comprises a gasket cuff that includes an inner cuff
extending laterally inward from a joint between the gasket cuff and base.
SUMMARY
We reverse the rejection of claims 1-5, 7, and 8 as anticipated by
Foreman and the rejection of claims 6, 9, and 10 as obvious in view of
Foreman.

REVERSED

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