Ex Parte Ohba et al

Board of Patent Appeals and Interferences

May 8, 2009

10360726 (B.P.A.I. May. 8, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte KIYOE OHBA and DENNIS OSAMU HIROTSU
__________

Appeal 2008-5582
Application 10/360,726
Technology Center 3700
__________

Decided:1 May 8, 2009
__________

Before DEMETRA J. MILLS, LORA M. GREEN, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving a claim to an
absorbent article. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-
in-part.

1 The two-month time period for filing an appeal or commencing a
civil action, as recited in 37 C.F.R. § 1.304, begins to run from the
decided date shown on this page of the decision. The time period
does not run from the Mail Date (paper delivery) or Notification
Date (electronic delivery).

Appeal 2008-5582
Application 10/360,726

Statement of the Case
The Claims
Claims 1-12 are on appeal. Claims 1-5, 11, and 12 are representative
and read as follows:
1. An absorbent article designed to be worn in the crotch
region of an undergarment, the absorbent article having a
longitudinal center line, a first end region, a second end
region, and a central region disposed between the first and
second regions, the absorbent article comprising:
an absorbent core;
a backsheet associated with the absorbent core, the
backsheet having a garment facing side and a first end edge
in the first end region; and
adhesive attachment means disposed on the garment
facing side of the backsheet for securing the absorbent
article to an undergarment;
the adhesive attachment means having an adhesive
pattern which includes
(a) a central adhesive section disposed on or along the
longitudinal center line, the central adhesive section having
a first end in the first end region, and
(b) a pair of side adhesive sections each disposed
transversely outboard of the central adhesive section,
respectively, each of the side adhesive section having a first
end in the first end region, the first ends of each side
adhesive section extending substantially to the first end edge
of the backsheet,
wherein the first end of the central adhesive section is
at least about 15 mm away from the first end edge of the
backsheet such that an adhesive free area is formed between
the first end of the central adhesive section and the first end
edge of the backsheet.

2. The absorbent article of the claim 1, wherein the
central adhesive section includes a plurality of central
adhesive stripes.
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3. The absorbent article of the claim 1, wherein each of
the side adhesive section includes a plurality of side
adhesive stripes.

4. The absorbent article of the claim 1, further
comprising a removable release liner which covers the
adhesive pattern, and wherein the removable release liner
has a periphery edge which has a portion that is coincident,
at least partially, with the first end edge of the backsheet.

5. The absorbent article of the claim 4, wherein the
removable release liner has a notch which is positioned such
that at least a part of the adhesive free area of the adhesive
pattern is exposed.

11. An absorbent article designed to be worn in the crotch
region of an undergarment, the absorbent article having a
longitudinal center line, a first end region, a second end
region, and a central region disposed between the first and
second regions, the absorbent article comprising:
an absorbent core;
a backsheet associated with the absorbent core, the
backsheet having a garment facing side and a first end edge
in the first end region; and
adhesive attachment means disposed on the garment
facing side of the backsheet for securing the absorbent
article to an undergarment, the adhesive attachment means
having an adhesive pattern which includes an adhesive
section and an adhesive free area; and
a removable release liner which covers the adhesive
pattern, and wherein the removable release liner has a notch
which is positioned such that the adhesive free area of the
adhesive pattern is exposed.

12. The absorbent article of the claim 11, further
comprising a first wrapper sheet which is joined to the
removable release liner.

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Application 10/360,726

The prior art
The Examiner relies on the following prior art references to show
unpatentability:
Ahr US 4,321,924 Mar. 30, 1982
Leeker US H1363 Oct. 4, 1994
Roach et al. US 5,413,568 May 9, 1995
Osborn, III et al. US 5,824,004 Oct. 20, 1998
Osborn, III et al. US 5,951,536 Sep. 14, 1999
Snauwaert WO 98/20823 May 22, 1998

The issues
A. The Examiner rejected claims 1-10 under 35 U.S.C.
§ 102(b) as being anticipated by Snauwaert (Ans. 4-9).
B. The Examiner rejected claim 11 under 35 U.S.C.
§ 102(b) as being anticipated by Snauwaert (Ans. 9).
C. The Examiner rejected claims 1-10 under 35 U.S.C.
§ 103(a) as being obvious over Snauwaert (Ans. 4-9).
D. The Examiner rejected claim 12 under 35 U.S.C.
§ 103(a) as being obvious over Snauwaert and Leeker (Ans. 9-10).
A. 35 U.S.C. § 102(b) over Snauwaert – Claims 1-10
The Examiner finds that Snauwaert “teaches an absorbent article, e.g.
a sanitary napkin, 20 designed to be worn in the crotch region of an
undergarment” (Ans. 4). The Examiner finds that Snauwaert teaches that
“[t]he adhesive attachment means have an adhesive pattern which includes
a) a central adhesive section disposed on or along the longitudinal center
line” (Ans. 5). Regarding the location of the central adhesive section
relative to the end edge of the backsheet, the Examiner finds that “‘about’
3mm and at least ‘about’ 15 mm allow some leeway from 3mm and 15mm
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and an adhesive free area is defined, the central part of the first end of the
central adhesive section is considered to be ‘at least about 15 mm’ from the
end edge of the backsheet” (Ans. 12).
Appellants contend that “Snauwaert teaches that the adhesive should
at most be about 9 mm from the end edges of the absorbent article” (App.
Br. 4). Appellants contend that “[c]laim 1 of the present application limits
the adhesive section to being ‘at least about 15 mm away from the first end
edge of the backsheet.’ . . . At most about 9 mm, as taught by Snauwaert, is
not at least about 15 mm, as in Claim 1 of the present application” (App. Br.
4).
In view of these conflicting positions, we frame the anticipation issue
before us as follows:
Did the Examiner err in finding that Snauwaert teaches an absorbent
article with adhesive attachment means “wherein the first end of the central
adhesive section is at least about 15 mm away from the first end edge of the
backsheet?”
Findings of Fact (FF)
1. Snauwaert teaches that “[a]bsorbent articles such as sanitary
napkins, pantiliners, and incontinence pads are devices that are typically
worn in the crotch region of an undergarment” (Snauwaert 1, ll. 10-11).
2. Snauwaert teaches that the “sanitary napkin 20 has two
centerlines, a principal longitudinal centerline L and a principal transverse
centerline T” (Snauwaert 7, ll. 34-35).
3. Snauwaert teaches an absorbent article as shown in Figure 1,
reproduced below:
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“Fig. 1 is a top plan view of a preferred embodiment of a sanitary napkin
that may be provided with the releasable adhesive cover arrangements”
(Snauwaert 6, ll. 9-10).
4. Snauwaert teaches that the “main body portion 22 generally
comprises . . . a liquid pervious topsheet 44, a liquid impervious backsheet
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46, and an overall absorbent portion (or ‘absorbent core’) 48 positioned
between the topsheet 44 and the backsheet 46” (Snauwaert 9, ll. 12-15).
5. Snauwaert teaches the adhesive arrangement shown in Figure 3,
reproduced below:

“Fig. 3 is a bottom plan view of the sanitary napkin shown in Fig. 1 which
shows one possible panty fastener pattern” (Snauwaert 6, ll. 16-17).
6. Snauwaert teaches that the “sanitary napkin 20 preferably also
has fasteners that are adapted to secure the sanitary napkin 20 to the crotch
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region of an undergarment. FIGS. 2 and 3 show one preferred type of
fastener, in the form of an adhesive attachment means, such as [a] central
pad adhesive 94 and side wrapping element adhesive 96” (Snauwaert 23, ll.
6-9).
7. Snauwaert cites that the “main body portion 22 of the sanitary
napkin” may be like those “described in U.S. Patent Application Serial No.
07/915,133 . . . in the name of Osborn [issued as U.S. Patent 5,824,004]”
(Snauwaert 15, ll. 21-25).
8. Osborn III 5,824,004 teaches that the “adhesive should
preferably be no more than about 6 mm from the end edges 24, and most
preferably no more than about 6 mm. plus or minus about 3 mm” (Osborn III
5,824,004, col. 31, ll. 49-52).
Principles of Law
“A rejection for anticipation under section 102 requires that each and
every limitation of the claimed invention be disclosed in a single prior art
reference.” In re Paulsen, 30 F.3d 1475, 1478-79 (Fed. Cir. 1994); see
Karsten Manufacturing Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383
(Fed. Cir. 2001) (“Invalidity on the ground of ‘anticipation’ requires lack of
novelty of the invention as claimed … that is, all of the elements and
limitations of the claim must be shown in a single prior reference, arranged
as in the claim.”).
A prior art range which overlaps, but is not wholly included within, a
claimed range generally does not anticipate the claimed range. See, e.g.,
Atofina v. Great Lakes Chemical Corp., 441 F.3d 991, 1000 (Fed. Cir.
2006).
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Analysis
While Snauwaert teaches an absorbent article with the elements
required by claim 1 (FF 1-7), Snauwaert does not teach that the first end of
the central adhesive section is “at least about 15 mm away from the first end
of the backsheet” as required by claim 1.
While we agree with the Examiner that the “about” language permits
some leeway, so that “about 15 mm” may reasonably encompass 14 or even
13 mm and “about 6 mm plus or minus about 3 mm” may reasonably
encompass 10 or even 11 mm, the claimed range and that disclosed in
Snauwaert incorporating the disclosure of Osborn III ‘004 cannot be
reasonably construed as overlapping.
The Examiner's rejection of the claims for anticipation under 35
U.S.C. § 102(b) is therefore foreclosed, in the absence of some more specific
teaching, by the Federal Circuit's decision in Atofina. The instant case is a
clearer situation than Atofina, since in Atofina, there was overlap between
the disclosed ranges, while in the instant case, the prior art range does not
overlap with the claimed range at all. Thus, the limitation regarding the “at
least about 15 mm” is simply not satisfied under an anticipation standard by
Snauwaert.
Conclusion of Law
The Examiner erred in finding that Snauwaert teaches an absorbent
article with adhesive attachment means “wherein the first end of the central
adhesive section is at least about 15 mm away from the first end edge of the
backsheet.”
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We reverse the rejections of claims 1-10 under 35 U.S.C. § 102(b) as
anticipated by Snauwaert.
B. 35 U.S.C. § 102(b) over Snauwaert – Claim 11
The Examiner finds that the “release liner 120 which covers the
adhesive pattern has a perforated line 122 which defines a shaped cut or
perforation, i.e. a ‘notch’ or shaped ‘hole’ or opening 126, 128, which is
positioned at an or the adhesive free area of the adhesive pattern such that
the area is exposed” (Ans. 9).
Appellants contend that Snauwaert “fails to disclose a removable
release liner having a notch” (App. Br. 11). Appellants contend that
First, the Final Office Action's definitional connection
from a perforation, to a hole, to a notch is not
supported by Snauwaert. Second, the Final Office
Action's definitional connection is incongruent with
the ordinary dictionary meanings of perforation and
notch. Third, the Final Office Action appears to
identify elements 126 and 128 as a notch

(App. Br. 11).
In view of these conflicting positions, we frame the anticipation issue
before us as follows:
Did the Examiner err in finding that Snauwaert teaches an absorbent
article with “a removable release liner which covers the adhesive pattern,
and wherein the removable release liner has a notch which is positioned such
that the adhesive free area of the adhesive pattern is exposed?”
Findings of Fact
9. The Specification teaches that the “removable release liner 60
preferably has a notch 63 which is positioned such that at least a part of . . .
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the adhesive free area 80 of the adhesive pattern on the backsheet 40 is
exposed through the notch 63” (Spec. 10, ll. 19-22).
10. The Specification teaches that the “notch 63 can have any shape
as long as at least a part of the adhesive free area 80 of the adhesive pattern
is exposed” (Spec. 10, ll. 23-24).
11. Snauwaert teaches a cleft or cut in the release liner at 128, as
shown in the portion of figure 12 reproduced below:

“Fig. 12 is a bottom plan view of a sanitary napkin having a perforated panty
fastener cover that can be separated into more than one piece for removal”
(Snauwaert 7, ll. 9-10).
12. Snauwaert teaches that “the embodiment shown in FIG. 12
comprises an hourglass-shaped release strip 120 that has a perforated line
122 in a dog bone shape in the center” (Snauwaert 28, ll. 35-36).
Principles of Law
Claim terms are interpreted using the broadest reasonable
interpretation in light of the Specification. See, e.g., In re Hyatt, 211 F.3d
1367, 1372 (Fed. Cir. 2000) (“[D]uring examination proceedings, claims are
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given their broadest reasonable interpretation consistent with the
specification.”). Also see In re Morris, 127 F.3d 1048, 1054-56 (Fed. Cir.
1997). (“Absent an express definition in their specification, the fact that
appellants can point to definitions or usages that conform to their
interpretation does not make the PTO's definition unreasonable when the
PTO can point to other sources that support its interpretation.”).
Analysis
In applying the broadest reasonable interpretation to the word “notch”
in claim 11, we first look to the Specification. The Specification teaches that
the notch may have any shape (FF 9-10). We agree with the Examiner that
an ordinary practitioner would reasonably interpret a “notch” as representing
a “cut of some shape” in the release liner (see Ans. 4). We also agree with
the Examiner that element 128 shown in figure 12 is reasonably interpreted
to represent a notch in the release liner. The Examiner properly interpreted
the word “notch” as a “cut” of some shape based upon the dictionary
definition of notch and the disclosures in the Specification and claim 9 (see
Ans. 4). Simply because Snauwaert does not use the word “notch” in
referring to element 128 does not differentiate element 128 from functioning
as a “notch.” In fact, we find that a reasonably review of element 128 in
figure 12 suggests that this element is a “notch” and is intended to function
as a notch.
However, we disagree with the Examiner that notch 128 overlays an
adhesive free region, since the notch 128 is reasonably understood as
overlaying the release strip 120, not an adhesive free region of the backsheet
(see FF 12).
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We are persuaded by Appellants’ argument that “Snauwaert . . . fails
to disclose a notch which is positioned such that at least part of the adhesive
free area of the adhesive pattern is exposed” (App. Br. 11). In figure 12, the
notch 128 is shown as being placed over the release strip, and not as being
placed over an adhesive free area of the backsheet. Consequently, while we
find that Snauwaert does teach a notch, we conclude that the notch does not
satisfy the requirements of claim 11.
Conclusion of Law
The Examiner erred in finding that Snauwaert teaches an absorbent
article with “a removable release liner which covers the adhesive pattern,
and wherein the removable release liner has a notch which is positioned such
that the adhesive free area of the adhesive pattern is exposed.”
We reverse the rejection of claim 11 under 35 U.S.C. § 102(b) as
anticipated by Snauwaert.
C. 35 U.S.C. § 103(a) over Snauwaert
The Examiner finds regarding the ranges of spacing of the adhesive
that “since the general conditions of the claim are disclosed in the prior art, it
is not inventive to discover the optimum or workable ranges, i.e. of the
spacing of the adhesive sections in order to define the adhesive free section,
by routine experimentation” (Ans. 7).
Appellants contend that “[i]n the context of a sanitary napkin having a
length of about 151 mm and a width of about 67 mm, as disclosed in the
present application (see e.g. page 9, lines 20-22), one skilled in the art would
recognize a 6 mm difference as being significant” (App. Br. 12). Appellants
also contend that “[o]ne skilled in the art would also expect a significant
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difference in mechanical properties would likely occur if the location of the
adhesive is changed by about 6 mm” (App. Br. 12). Appellants also contend
that “the '004 patent teaches away from the first end of the central adhesive
being more than about 9 mm away from the first end edge” (App. Br. 13).
In view of these conflicting positions, we frame the anticipation issue
before us as follows:
Did the Examiner err in finding that Snauwaert renders obvious an
absorbent article with adhesive attachment means “wherein the first end of
the central adhesive section is at least about 15 mm away from the first end
edge of the backsheet?”
Findings of Fact
13. The Specification teaches that “[i]n one preferred embodiment
shown in Fig. 1, the pantiliner has a longitudinal length of about 151 mm,
and a traversal length (at the side lobes 81 and 82) of about 67 mm” (Spec.
9, ll. 20-22).
14. Snauwaert teaches that “[i]n one preferred embodiment, the
main body portion 22 of the sanitary napkin 20 is about 3.25 inches (8.26
cm) [82.6 mm] wide at its narrowest point. The overall sanitary napkin 20
in such an embodiment is approximately 14.75 (37.5 cm) [375 mm] in
length measured along the longitudinal centerline L, and about 6.25 inches
(about 16 cm) [160 mm] in width (measured between the distal edges of the
side wrapping elements)” (Snauwaert 9, ll. 4-8).
15. The “about” language permits some leeway, so that “about 15
mm” may reasonably be interpreted to encompass 14 or even 13 mm and
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“about 6 mm plus or minus about 3 mm” may reasonably encompass 10 or
even 11 mm.
16. Snauwaert teaches that the “panty fastener pattern shown in
FIG. 3 comprises a pair of longitudinally-oriented central pad fasteners 94
that lie on opposite sides of the principal longitudinal centerline L”
(Snauwaert 23, ll. 20-22).
17. Snauwaert teaches that the “sanitary napkin 20 also preferably
comprises a pair of spaced apart rectangular patches of fastener material in
each end region, 32 and 34, of the sanitary napkin” (Snauwaert 24, ll. 5-7).
18. Snauwaert teaches side adhesive sections with a plurality of
side adhesive stripes as shown in figure 5, reproduced below:

“Fig. 5 is a bottom plan view of the sanitary napkin shown in Fig. 1 which
shows another possible panty fastener pattern” (Snauwaert 6, ll. 29-30).
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19. Snauwaert teaches that removable release liner 102 has a
periphery edge which is coincident with an end edge of the backsheet as
shown in figure 7, reproduced below:

“Fig. 7 is a side view of the sanitary napkin and releasable wrapper shown in
Fig. 6 in a partially folded configuration” (Snauwaert 6, ll. 36-37).
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Principles of Law
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) the level of ordinary skill in the art; (3) the differences between the
claimed invention and the prior art; and (4) secondary considerations of
nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17 (1966).
The Supreme Court has recently emphasized that “the [obviousness] analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” KSR
Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
Id. at 416. “If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability.” Id. at 417. Moreover, an
“[e]xpress suggestion to substitute one equivalent for another need not be
present to render such substitution obvious.” In re Fout, 675 F.2d 297, 301
(CCPA 1982). As noted by the Court in KSR, “[a] person of ordinary skill is
also a person of ordinary creativity, not an automaton.” 550 U.S. at 421.
Moreover, as our reviewing court stated in Peterson
In cases involving overlapping ranges, we and our
predecessor court have consistently held that even a slight
overlap in range establishes a prima facie case of
obviousness …. We have also held that a prima facie case of
obviousness exists when the claimed range and the prior art
range do not overlap but are close enough such that one
skilled in the art would have expected them to have the same
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properties. Titanium Metals Corp. v. Banner, 778 F.2d 775,
783 . . . (Fed.Cir.1985).

In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003).
Analysis
Snauwaert teaches an absorbent article with an absorbent core, a
backsheet, and adhesive attachment means with a central adhesive section
and a pair of side adhesive sections (FF 1-7). Snauwaert incorporates the
Osborn III ‘004 patent, which teaches that the “adhesive should preferably
be no more than about 6 mm from the end edges 24, and most preferably no
more than about 6 mm plus or minus about 3 mm” (Osborn III 5,824,004,
col. 31, ll. 49-52; FF 8).
Claim 1
As discussed above, the “about” language permits some leeway, so
that “about 15 mm” may reasonably encompass 14 or even 13 mm and
“about 6 mm plus or minus about 3 mm” may reasonably encompass 10 or
even 11 mm (FF 15). Thus, the difference between the range in claim 1 and
that disclosed in Snauwaert is somewhere between 2 to 4 millimeters.
Applying the KSR and Peterson to the findings of fact, we agree with
the Examiner that the skilled artisan would have reasonably expected similar
properties in sanitary napkins with a width of either 67 or 82 mm (FF 13-14)
where the difference in the adhesive attachment is from 2 to 4 millimeters in
length (FF 15). See Peterson, 315 F.3d at 1329. (“[A] prima facie case of
obviousness exists when the claimed range and the prior art range do not
overlap but are close enough such that one skilled in the art would have
expected them to have the same properties.”).
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We are not persuaded by Appellants’ argument that “one skilled in the
art would recognize a 6 mm difference as being significant” (App. Br. 12).
As we discussed above, the “about” language reduces the size difference to
2-4 mm (FF 15) and Appellants have provided no evidence that a size
difference of 2-4 mm would result in different properties. See In re Geisler,
116 F.3d 1465, 1470 (Fed. Cir. 1997) (“[A]ttorney argument [is] not the
kind of factual evidence that is required to rebut a prima facie case of
obviousness”).
We also are not convinced by Appellants’ argument that “Snauwaert
also teaches away from the adhesive being more than about 9 mm from the
first end edge of the backsheet” (App. Br. 13). Appellants cite the
discussion in Osborn III, ‘004 regarding end flipping and the teaching of the
range of about 6mm plus or minus about 3 mm and conclude that
“Snauwaert teaches away from the first end of the central adhesive being at
least about 15 mm away from the first end edge” (App. Br. 13).
Like our appellate reviewing court, “[w]e will not read into a
reference a teaching away from a process where no such language exists.”
DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464
F.3d 1356, 1364 (Fed. Cir. 2006). In this context, Osborn III, ‘004 (who
teaches the range at issue) does not teach that it would be inoperable to place
the adhesive 11 to 13 mm from the end edge, but simply that it might
increase the risk of “end flipping” (see Osborn III, ‘004, col. 31, ll. 44-47).
See In re Mills, 470 F.2d 649, 651, CCPA 1972) (citations omitted) (“All the
disclosures in a reference must be evaluated, including nonpreferred
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embodiments, and a reference is not limited to the disclosure of specific
working examples.”).
Claim 2
Appellants contend that Snauwaert “does not teach a central adhesive
section that includes a plurality of stripes” (App. Br. 14). Claim 1 requires
that the “central adhesive section [is] disposed on or along the longitudinal
center line” and Claim 2 further requires that “the central adhesive section
includes a plurality of central adhesive stripes.”
However, Snauwaert plainly teaches embodiments which comprise
multiple stripes in the center of the absorbent article, as shown in figure 3,
for example (FF 5). In Figure 3, Snauwaert teaches that the “panty fastener
pattern shown in FIG. 3 comprises a pair of longitudinally-oriented central
pad fasteners 94 that lie on opposite sides of the principal longitudinal
centerline L” (Snauwaert 23, ll. 20-22; FF 16). These stripes 94 in figure 3
are reasonably interpreted as being disposed “along the longitudinal center
line.” Also, two stripes disposed along the central longitudinal line are
reasonably construed as satisfying the requirement for a “plurality of central
adhesive stripes.”
Claim 3
Appellants contend that “Snauwaert does not teach side adhesive
sections that include a plurality of side adhesive stripes” (App. Br. 14).
Claim 3 requires that “each of the side adhesive section[s] includes a
plurality of side adhesive stripes.”
However, Snauwaert plainly teaches embodiments which comprise
multiple stripes on the side of the absorbent article, as shown in figure 5, for
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example (FF 17-18). In figure 5, Snauwaert shows, in addition to central
adhesive 94 along the longitudinal line L, three additional pads on each side,
pads 94 at each side corner of the absorbent article and pad 96 at each side
of the article (FF 17-18). Snauwaert therefore teaches three side adhesive
stripes on each side of the absorbent article, which satisfies the requirement
for “a plurality of side adhesive stripes” in claim 3.
Claim 4
Appellants contend that “[o]ne skilled [in the] art would have no
motivation to dimension the release paper 102 to at least partially match the
dimensions of the backsheet because the two components are on opposite
faces of the sanitary napkin [and] the function of each component is
unrelated to the function of the other” (App. Br. 15).
Claim 4 requires that the removable release liner “has a periphery
edge which has a portion that is coincident, at least partially, with the first
end edge of the backsheet.”
However, Snauwaert teaches embodiments where the release paper
102 matches the dimensions of the backsheet attached to napkin 20, as
shown in figure 7, for example (FF 19). In figure 7, Snauwaert shows that
release liner 102 is coincident in length with the sanitary napkin 20, which
necessarily results in the release liner having a portion coincident with a first
end edge of the backsheet.
Claim 5
As we discussed above regarding the anticipation rejection of claim
11, while Snauwaert teaches a notch 128, Snauwaert does not teach or
suggest that the notch 128 is “positioned such that at least a part of the
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adhesive free area of the adhesive pattern is exposed.” We find that the
Snauwaert does not satisfy the claim limitations of claim 5. Further, the
Examiner has not provided a reason to expose a part of the adhesive free
area of the adhesive pattern. See KSR, 550 U.S. at 418. (There must be “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.”).
Conclusion of Law
The Examiner did not err in finding that Snauwaert renders obvious
an absorbent article with adhesive attachment means “wherein the first end
of the central adhesive section is at least about 15 mm away from the first
end edge of the backsheet.”
The Examiner erred in finding that Snauwaert teaches a removable
release liner which “has a notch which is positioned such that at least a part
of the adhesive free area of the adhesive pattern is exposed” as required by
claim 5.
We affirm the rejection of claims 1-4 under 35 U.S.C. § 103(a) over
Snauwaert. Pursuant to 37 C.F.R. § 41.37(c)(1)(vii)(2006), we also affirm
the rejection of claims 6-10, as these claims were not argued separately.
We reverse the rejection of claim 5 under 35 U.S.C. § 103(a) over
Snauwaert.
D. 35 U.S.C. § 103(a) over Snauwaert and Leeker
Having reversed the rejection of claim 11 above, from which claim 12
depends, we also reverse the obviousness rejection of claim 12 for the
reasons given above. The Examiner does not identify where Leeker teaches
the element missing from Snauwaert regarding claim 11 of “a notch which is
22
Appeal 2008-5582
Application 10/360,726

positioned such that at least a part of the adhesive free area of the adhesive
pattern is exposed.”
We reverse the rejection of claim 12 under 35 U.S.C. § 103(a) over
Snauwaert and Leeker.
SUMMARY
In summary, we reverse the rejections of claims 1-10 under 35 U.S.C.
§ 102(b) as anticipated by Snauwaert. We reverse the rejection of claim 11
under 35 U.S.C. § 102(b) as anticipated by Snauwaert.
We affirm the rejection of claims 1-4 under 35 U.S.C. § 103(a) over
Snauwaert. Pursuant to 37 C.F.R. § 41.37(c)(1)(vii)(2006), we also affirm
the rejection of claims 6-10, as these claims were not argued separately.
We reverse the rejection of claim 5 under 35 U.S.C. § 103(a) over
Snauwaert.
We reverse the rejection of claim 12 under 35 U.S.C. § 103(a) over
Snauwaert and Leeker.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv)(2006).
AFFIRMED-IN-PART

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