Ex Parte Olson et al

Board of Patent Appeals and Interferences

Sep 4, 2008

10331956 (B.P.A.I. Sep. 4, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_________________

Ex parte CHRISTOPHER P. OLSON, ROBERT A. STEVENS,
and MARK S. FRANKE

Appellants
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Appeal 2008-4911
Application 10/331,956
Technology Center 3700
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Decided: September 4, 2008
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Before RICHARD E. SCHAFER, SALLY GARDNER LANE, and
MICHAEL P. TIERNEY, Administrative Patent Judges.

LANE, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2008-4911
Application 10/331,956

I. STATEMENT OF THE CASE
The appeal is from a Final Rejection of claims 1, 2, 5, and 9-12, which
are all of the pending claims. 35 U.S.C. § 134. Claims 4, 6-8, and 13-21
have been withdrawn as being drawn to a non-elected species and claim 3
has been canceled. (See Amendments received Jan. 13, 2006, and June 2,
2006). We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
The application was filed December 30, 2002. It was published as
Application Publication 2004/0127868 on July 1, 2004. The real party in
interest is said to be Kimberly-Clark Worldwide, Inc. (App. Br. 2).
The Examiner relied on the following references.
Name Number Date
LeMahieu 5,620,431 Apr. 15, 1997
Zehner 2002/0052591 May 2, 2002

Appellants did not argue against the prior art status of these
references.
Appellants appeal the rejection of claims 1, 2, 5, and 9-12 under 35
U.S.C. § 103(a) over the combination of the teachings of Zehner and
LeMahieu. Appellants did not argue separately for the patentability of any
of the rejected claims. We review claim 1 as a representative claim. See Bd.
R. 37(c)(1)(vii).
II. FINDINGS OF FACT
The record supports the following findings of fact as well as any other
findings of fact set forth in this opinion, by at least a preponderance of the
evidence.
1. Appellants’ claim 1 recites:
An absorbent article, comprising:
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Application 10/331,956

a chassis having a front waist region at a first
longitudinal end, a back waist region at an opposite longitudinal
end, and a crotch region extending longitudinally between said
front and back waist regions;
an absorbent body structure extending longitudinally
generally from said front waist region to said back waist region;
longitudinally extending leak guards, each said leak
guard having a free laterally inward side extending
longitudinally generally from said front waist region to said
back waist region and a laterally outward side attached to said
chassis so as to define respective containment pockets along
opposite lateral sides of said absorbent body structure, said leak
guards being substantially elastomeric in a transverse direction
along their longitudinal length; and
wherein said chassis includes stretchable waistbands
along at least a portion of said front and back waist regions,
said leak guards having longitudinal ends attached to said
chassis coextensive with said stretchable waistbands so as not
to inhibit stretchability of said waistbands.

(App. Br., Claims Appx., 1).
2. Figure 2 of Appellants’ specification is reproduced below.
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Application 10/331,956

Figure 2 depicts “elastomeric leak guards 58 [that] have a laterally outboard
side 62 that is bonded along lines 27” (Spec. 9, ll. 3-9), and “a laterally
inboard ‘free’ side 60 such that the guards essentially define a containment
pocket along the lateral sides of the absorbent structure 32.” (Spec. 8, ll. 31-
33).
3. Appellants’ specification provides that “[i]n an alternate
embodiment, the lateral side 62 may not be outboard of the absorbent body
structure, but extends over a portion of the absorbent body structure 32.”
(Spec. 8, ll. 27-29).
4. Figure 2 of Zehner is reproduced below.
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Application 10/331,956

Figure 2 depicts a disposable or diaper absorbent article with
a chassis 22 and further includes or defines a front waist area or
region 24 forming a front edge 26, a back waist area or region
30 forming a back edge 32, and a crotch area or region 34
disposed between the front and back waist areas, 24 and 30,
respectively.

(Zehner ¶ [0076]).
5. Zehner provides for “[a]n absorbent core assembly 70 . . . .”
(Zehner ¶ [0080]).
6. Figure 2 of Zehner provides that
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the chassis 22 includes a pair of laterally-spaced apart and
longitudinally-extending containment flap or gasket members,
72 and 74, respectively, such as disposed along the wearer
adjacent surface 36 of the bodyside liner 66 and which are
configured to provide a barrier to the transverse or lateral flow
of body exudates. The containment flap members 72 and 74
each generally define an unattached edge which assumes an
upright, generally perpendicular configuration in at least the
crotch area 34 of the diaper 20 to form a seal against the
wearer's body. Containment flap member constructions and
arrangements are generally well known to those skilled in the
art and are described in U.S. Pat. No. 4,704,116 issued Nov. 3,
1987 to Enloe, which is incorporated herein by reference.

(Zehner ¶ [0081]).
7. Zehner provides that “each of the pair of containment flap
members 72 and 74 desirably comprises a biaxially stretchable material.”
(Zehner ¶ [0090]).
8. LeMahieu relates to disposable absorbent articles and provides
ways “to improve the containment and absorption abilities of such products
. . . .” (LeMahieu col. 1, ll. 21-22).
9. LeMahieu teaches
elastic members 25 . . . [which] are disposed at the longitudinal
sides of the garment 20 and form both outer leg cuffs 28 and
inner freestanding leg cuffs 29. The elastic members 25 provide
relatively high levels of tension so that the absorbent article 20
tends to maintain a close fit to the body of the wearer. Due to
the nature of the elastic members 25 employed and their
integration with the other components of the garment 20, the
garment readily conforms to the wearer while minimizing the
occurrences of skin marking. As a result, the garment 20
provides enhanced containment of wastes while maintaining the
comfort of the wearer.

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(LeMahieu col. 4, ll. 42-52).
10. Appellants did not dispute that it would be a predictable
variation to use the elastomeric material taught in LeMahieu for the
“biaxially stretchable material” of Zehner.
III. LEGAL PRINCIPLES
The Supreme Court has recently noted that
[w]hen a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill.

KSR Int’l v. Teleflex Inc., 127 S.Ct. 1727, 1740 (2007).
IV. ANALYSIS
Appellants’ claim 1 recites
An absorbent article, comprising:
a chassis having a front waist region at a first
longitudinal end, a back waist region at an opposite longitudinal
end, and a crotch region extending longitudinally between said
front and back waist regions;
an absorbent body structure extending longitudinally
generally from said front waist region to said back waist region;
longitudinally extending leak guards, each said leak
guard having a free laterally inward side extending
longitudinally generally from said front waist region to said
back waist region and a laterally outward side attached to said
chassis so as to define respective containment pockets along
opposite lateral sides of said absorbent body structure, said leak
guards being substantially elastomeric in a transverse direction
along their longitudinal length; and
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wherein said chassis includes stretchable waistbands
along at least a portion of said front and back waist regions,
said leak guards having longitudinal ends attached to said
chassis coextensive with said stretchable waistbands so as not
to inhibit stretchability of said waistbands.

(FF 1). Zehner discloses an absorbent article that includes a chassis with
front and back waist areas, a crotch region between them (FF 4), and an
absorbent core assembly (FF 5). Zehner also discloses “longitudinally-
extending containment flap or gasket members, 72 and 74, respectively, such
as disposed along the wearer adjacent surface 36 of the bodyside liner 66
and which are configured to provide a barrier to the transverse or lateral flow
of body exudates.” (FF 6). These containment flaps “generally define an
unattached edge which assumes an upright, generally perpendicular
configuration in at least the crotch area 34 of the diaper 20 to form a seal
against the wearer's body.” (FF 6). Figure 2 of Zehner depicts the
containment flaps 72 and 74 as extending “longitudinally generally from
said front waist region to said back waist region,” (FF 4). Thus, these
containment flaps are similar to the “longitudinally extending leak guards”
recited in Appellants’ claim 1.
Zehner teaches that each of the containment flaps “comprises a
biaxially stretchable material.” (FF 7). LeMahieu, which provides ways to
“improve the containment and absorption abilities” of disposable absorbent
articles (FF 8), teaches that elastic materials can be used on leg cuffs to
“provide enhanced containment of wastes while maintaining the comfort of
the wearer.” (FF 9). Thus, to the extent that Zehner’s “biaxially stretchable
material, is not elastomeric, Appellants did not dispute that the elastomeric
material of the type used by LeMahieu to provide tension would have been a
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“predictable variation.” (FF 10). KSR, supra. Thus, the combination of the
teachings of Zehner and LeMahieu render the subject matter of Appellants’
claim 1 obvious.
Appellants argued that
independent claim 1 requires that the leak guards define
respective containment pockets along opposite lateral sides of
the absorbent body structure. . . .
Zehner '590 may disclose containment flaps (72, 74)
disposed along opposite sides of the wearer adjacent surface
(36) of the bodyside liner (66). However, as shown in Figure 2
and described in paragraph [0079] of Zehner '590, the flaps are
upright and generally perpendicular in at least the crotch area
(absorbent body), thus defining, if at all, one containment
pocket that extends from flap to flap, with the absorbent body
in between the flaps.

(App. Br. 4 (emphasis in original)). According to Appellants,
[a]s described in paragraph [0036] and shown in figures 3 and
3A of the present application, when the absorbent article is bent
from its flat configuration, the leak guards (58) will move to an
upright position and slightly sink to form containment pockets
along the opposite lateral sides of the absorbent body structure
(32).
(App. Br. 4 (emphasis in original)). We do not find the requirement of
“slightly sinking” in paragraph [0036] or elsewhere in Appellants’
specification. Nor do the claims require that leak guards “slightly sink”
when the diaper is bent from its flat configuration. Thus, we are not
convinced that claimed “containment pockets” are limited to structures that
form when the leak guards “move to an upright position and slightly sink”
upon bending of the absorbent articles.
Appellants also tried to distinguish the claimed “containment pockets”
from the structures disclosed in Zehner by noting:
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As correctly noted in the present Office Action, U.S. Patent
4,704,116 (Enloe '116) is incorporated by reference in both the
present application and in Zehner '590. Enloe '116 discloses
flaps that form pockets into which solid fecal material collects
and is contained or fluidic fecal material is collected and
strained, allowing the liquid portion to be absorbed by the
absorbent pad. However, as seen in Figure 1 and described at
Col. 4, lines 60-69 of Enloe '116, the pockets are formed atop
the absorbent body and allow a liquid portion to be strained into
the absorbent body. Therefore, Enloe '116 fails to disclose or
teach containment pockets along opposite lateral sides of the
absorbent body as recited in claim 1. In addition, the pockets
described in Enloe '116 are merely ruffles in the bodyside liner,
and do not qualify as pockets according to the present
invention.

(App. Br. 5 (emphasis in original)). Claim 1 provides that “containment
pockets” are structures formed by “longitudinally extending leak guards,
each said leak guard having a free laterally inward side extending
longitudinally generally from said front waist region to said back waist
region and a laterally outward side attached to said chassis.” (FF 1). Claim
1 does not include any terms that limit where the “longitudinally extending
leak guards” are positioned relative to the “absorbent body structure.”
Furthermore, Appellants’ specification does not prohibit the “longitudinally
extending leak guards” from being positioned “atop” the “absorbent body
structure.” In fact, Appellants’ specification allows that the lateral side 62
may not be outboard of the absorbent body structure, but in an embodiment
“extends over a portion of the absorbent body structure 32.” (FF 3).
“During examination, ‘claims ... are to be given their broadest reasonable
interpretation consistent with the specification, and . . . claim language
should be read in light of the specification as it would be interpreted by one
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of ordinary skill in the art.’” In re American Academy of Sci. Tech Center,
367 F.3d 1359, 1364 (Fed. Cir. 2004)(citations omitted). Thus, we do not
read a limitation into Appellants’ claim 1 such that the “containment
pockets” are formed by “longitudinally extending leak guards” that do not
extend “atop” the “absorbent body structure.”
We note that Appellants have attempted to define the claim term
“containment pockets” to distinguish it over structures in the prior art.
Appellants’ construction is not supported by the evidence and represents
mere attorney argument. Specifically, Appellants did not direct us to
sufficient evidence of what those of skill in the art would have considered to
be “containment pockets” at the time of filing. (See App. Br. 6 (“Applicants
do not rely on any evidence submitted pursuant to 37 CFR 1.130, 1.131, or
1.132 or any other evidence entered by the examiner in this appeal.”)).
The Examiner determined that “[t]he unattached edge [of the
containment flaps 72 and 74] forms a seal against the skin and provides a
pocket therein as shown in figures 15 and 23-24 [of Zehner]. One pocket is
formed on each lateral side of the article as it corresponds to each
containment flap.” (Ans. 5). Appellants have not directed us to sufficient
evidence showing that the Examiner’s understanding would have been
considered inconsistent with the broadest reasonable interpretation of the
claims by those of skill in the art.
Appellants have not convinced us that the claimed invention would
not have been obvious over the cited references. Thus, Appellants have not
convinced us that the Examiner erred in rejecting claim 1 under 35 U.S.C. §
103(a) over the combination of Zehner and LeMahieu.
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V. ORDER
Upon consideration of the record and for the reasons given, the
Examiner’s rejection of claims 1, 2, 5, and 9-12 under 35 U.S.C. § 103(a)
over the combination of the teachings of Zehner and LeMahieu is
AFFIRMED.
AFFIRMED

qsg

Stephen E. Bondura
Dority & Manning, P.A.
P.O. Box 1449
Greenville, SC 29602-1449

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