Ex Parte Ruman et alDownload PDFPatent Trial and Appeal BoardNov 8, 201712580847 (P.T.A.B. Nov. 8, 2017) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/580,847 10/16/2009 Marcille Faye Ruman 64644057US01 1255 23556 7590 11/09/2017 KIMBERLY-CLARK WORLDWIDE, INC. Patent Docketing 2300 Winchester Rd. NEENAH, WI 54956 EXAMINER KIDWELL, MICHELE M ART UNIT PAPER NUMBER 3761 MAIL DATE DELIVERY MODE 11/09/2017 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte MARCILLE FAYE RUMAN, MATTHEW BOYD LAKE, and HERA NICHOLE LINN ____________________ Appeal 2016-004601 Application 12/580,847 Technology Center 3700 ____________________ Before JAMES P. CALVE, RICHARD H. MARSCHALL, and ARTHUR M. PESLAK, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Marcille Faye Ruman et al. (“Appellants”) appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 17–24.1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellants submit the real party in interest is Kimberly-Clark Worldwide, Inc. Br. 1. Appeal 2016-004601 Application 12/580,847 2 THE CLAIMED SUBJECT MATTER Claim 17, the only independent claim, is reproduced below with italics added. 17. A disposable absorbent article having a uniform appearance, the article comprising: a chassis including an outer cover, a liner generally parallel to the outer cover, and an absorbent core disposed therebetween; a first elastic panel attached at a seam to the chassis; a second elastic panel attached at a seam to the chassis, wherein the first elastic panel is attached at a seam to the second elastic panel; and a waist opening and two leg openings, wherein the outer cover includes a first material, wherein each elastic panel includes a second material, wherein the first material is different from the second material, and wherein the second material gives the appearance of being identical in texture to the first material. REJECTIONS 1) Claims 17–19 are rejected under 35 U.S.C. § 102(b) as being anticipated by Klemp (US 6,702,795 B2, issued Mar. 9, 2004). 2) Claims 20–24 are rejected under 35 U.S.C. § 103(a) as unpatentable over Klemp and Melbye (US 5,681,302, issued Oct. 28, 1997). DISCUSSION Rejection 1 The Examiner finds that Klemp discloses all the limitations of claim 17 including an outer cover 18 and first and second elastic panels 46. Final Act. 3. Appellants’ sole contention for reversal of the rejection is that Appeal 2016-004601 Application 12/580,847 3 there is no teaching or suggestion, or motivation anywhere in the Klemp reference that the first elastic panel 46 and the second elastic panel are different materials than the outer cover such that the appearance of the first elastic panel 46 and the second elastic panel 46 and the outer cover have identical texture. Br. 3–4 (emphasis added). Appellants argue that the Examiner’s finding that Klemp discloses an absorbent article that “has a uniform appearance” is not equivalent to the recited first material and second material giving “the appearance of being identical in texture” to the outer cover. Id. The Examiner responds that Klemp discloses a disposable absorbent article with different materials that is described as having “a uniform appearance” and “a flat, smooth outer surface.” Ans. 8 (citing Klemp, 9:54– 57, 10:66–11:5). The Examiner notes that Klemp’s backsheet and stretchable member both “display a flat, smooth outer surface.” Id. (citing Klemp, 10:66–11:5). In addition, the Examiner directs us to Appellants’ Specification which, according to the Examiner, “equates texture with smoothness.” Id. (citing Spec. 16:3). Based on the foregoing, the Examiner reasons that Klemp’s materials give “the appearance of having the same texture.” Id. For the following reasons, we sustain the rejection of claim 17. Klemp discloses a variety of materials for the outer cover 18, none of which are described as elastic. Klemp, 6:13–37. Klemp discloses materials for elastic panel 46 that are described as elastic. Id. at 10:47–56. Klemp also illustrates the surface characteristics of outer cover 18 and elastic panel 46. See id. at Fig. 4.2 When we review the disclosure of drawings in a prior art reference, we should “evaluate and apply the teachings . . . on the basis of 2 Figure 4 illustrates the article in “an extended configuration.” Klemp, 4:59–60. Appeal 2016-004601 Application 12/580,847 4 what they reasonably disclose and suggest to one skilled in the art.” In re Aslanian, 590 F.2d 911, 914 (CCPA 1979) (citation omitted); In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972). One of ordinary skill in the art would reasonably understand from Figure 4 that the surfaces of outer cover 18 and elastic panel 46 both give the appearance of being smooth in that they both form flat planar surfaces without any corrugations or changes in height of the surface. As noted by the Examiner, Appellants’ Specification equates smoothness with texture. Spec. 16:3. The Examiner’s determination that Klemp anticipates claim 17 including the limitation “wherein the second material gives the appearance of being identical in texture to the first material” is, thus, supported by a preponderance of the evidence. Moreover, the Examiner finds that Klemp discloses outer surface 90 of top sheet 16 and outer surface 92 of backsheet 18 as having the same texture in a contracted condition and therefore the same appearance. See Ans. 8; Klemp, 10:2–34, 10:66–11:5, Fig. 5. We, therefore, sustain the rejection of claim 17 and dependent claims 18 and 19 for which Appellants do not submit separate arguments for patentability. Rejection 2 Claims 20–24 depend from claim 17. Br. 6–7 (Claims App.). Appellants rely on the same arguments for patentability of these claims as for claim 17. Id. at 4. We sustain the rejection of claims 20–24 for the same reasons stated above for claim 17. DECISION The Examiner’s decision rejecting claims 17–24 is affirmed. Appeal 2016-004601 Application 12/580,847 5 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation