Ex Parte Schmitt

Board of Patent Appeals and Interferences

Jul 18, 2005

09242014 (B.P.A.I. Jul. 18, 2005)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte ACHIM SCHMITT
____________
Appeal No. 2005-1242
Application No. 09/242,014
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ON BRIEF
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Before McQUADE, NASE, and BAHR, Administrative Patent Judges.
NASE, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection (mailed May 14,
2003) of claims 1 and 6 to 9. Claims 2 to 5 and 10 were canceled prior to the final
rejection. On page 2, of the brief (filed July 3, 2003), the appellants state "[c]laims 6-9
are cancelled. Claim 1 is being appealed." Accordingly, the appeal with respect to
claims 6 to 9 is dismissed. Claim 1 remains on appeal.
We REVERSE.
Appeal No. 2005-1242
Application No. 09/242,014
Page 2
BACKGROUND
The appellant's invention relates to disposable absorbent articles such as
sanitary napkins, pantiliners and incontinence pads that have side wrapping elements,
also called wings on each longitudinal side edge of the article for protection of the side
edges of the wearer's undergarment. The side wrapping elements are joined to the
absorbent article such that they are predisposed towards their in-use-position, with the
outermost edge of the side wrapping elements towards the longitudinal center line of the
article. In this configuration the side wrapping elements can be unfolded by pulling the
outermost edge of each side wrapping element in a transverse direction and applying
the unfolded article to the crotch position of the wearers undergarment (specification, p.
1). Claim 1 reads as follows:
Disposable absorbent article (20) for wear in an undergarment,
comprising: a longitudinal axis (L) and a transverse axis (T), said disposable
absorbent article comprising a main body portion (21) having longitudinal side
edges (23) substantially extending parallel to said longitudinal axis (L) and having
transverse side edges (22) substantially extending parallel to said transverse axis
(T), said main body portion (21) further having a wearer facing surface and a
garment facing surface, and said disposable absorbent article comprising side
wrapping elements that are integral with said main body portion (21) said
wrapping elements being folded along fold lines and attached to said garment
facing side of said main body portion such that said side wrapping elements are
pre-positioned in an in-use-position prior to the use of the disposable absorbent
article.
Appeal No. 2005-1242
Application No. 09/242,014
Page 3
1Issued October 3, 1995.
Claim 1 stands rejected under 35 U.S.C. § 102(b) as being anticipated by U.S.
Patent No. 5,454,8041 to Widlund.
The conflicting viewpoints advanced by the examiner and the appellant regarding
the above-noted rejection are set forth in the answer (mailed September 23, 2003) and
the brief (filed July 3, 2003).
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claim 1, to the Widlund patent, and to the respective
positions articulated by the appellant and the examiner. As a consequence of our
review, we will not sustain the anticipation rejection of claim 1 for the reasons which
follow.
Anticipation is established only when a single prior art reference discloses,
expressly or under the principles of inherency, each and every element of a claimed
invention. RCA Corp. v. Applied Digital Data Sys., Inc., 730 F.2d 1440, 1444, 221
USPQ 385, 388 (Fed. Cir. 1984). In other words, there must be no difference between
Appeal No. 2005-1242
Application No. 09/242,014
Page 4
the claimed invention and the reference disclosure, as viewed by a person of ordinary
skill in the field of the invention. Scripps Clinic & Research Found. v. Genentech Inc.,
927 F.2d 1565, 1576, 18 USPQ2d 1001, 1010 (Fed. Cir. 1991). The inquiry as to
whether a reference anticipates a claim must focus on what subject matter is
encompassed by the claim and what subject matter is described by the reference. As
set forth by the court in Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772, 218 USPQ
781, 789 (Fed. Cir. 1983), cert. denied, 465 U.S. 1026 (1984), it is only necessary for
the claims to "'read on' something disclosed in the reference, i.e., all limitations of the
claim are found in the reference, or 'fully met' by it."
In the rejection before us in this appeal, the examiner (answer, p. 3) determined
that claim 1 was readable on Widlund as follows:
Widlund discloses a sanitary napkin, as shown in figure[s] 1-6, for wearing
the crotch portion of an undergarment (9). The sanitary napkin has a longitudinal
axis and a transverse axis, and comprises a main body portion having
longitudinal and transverse side edges, as shown in figures 1 and 5. The main
body portion comprises a wearer facing surface (1) and a garment facing surface
(2). The sanitary napkin comprises side wrapping elements (4, 5) that are
integrally connected to the main body portion. The side wrapping elements (4, 5)
are intended to be folded around the edges of the leg opening's of a wearer's
undergarment (9), and are therefore folded along fold lines, as shown in figure 6.
The side wrapping elements (4, 5) are attached to the garment facing surface (2)
of the main body portion such that the side wrapping elements (4, 5) are
predisposed in an in-use position prior to use, as shown in figure 3.
Appeal No. 2005-1242
Application No. 09/242,014
Page 5
The appellant states in the brief that claim 1 is directed only to the Figure 3
embodiment of the invention in which side wrapping elements integral with the main
body portion are folded along fold lines and attached to the garment facing side of the
main body portion such that the side wrapping elements are pre-positioned in an
in-use-position prior to the use of the disposable absorbent article. The appellant
asserts that claim 1 is not readable on the Figure 4 embodiment of the invention in
which separate side wrapping elements are attached to the garment facing side of the
main body portion such that the side wrapping elements are pre-positioned in an
in-use-position prior to the use of the disposable absorbent article. The appellant
argues that Widlund teaches separate flaps attached to the garment facing side of the
main body portion akin to his Figure 4 embodiment, not the claimed Figure 3
embodiment.
Claim 1 is not anticipated by Widlund. Claim 1 requires the disposable
absorbent article to include side wrapping elements integral with the main body portion
are folded along fold lines and attached to the garment facing side of the main body
portion such that the side wrapping elements are pre-positioned in an in-use-position
prior to the use of the disposable absorbent article. While Widlund's flaps may well be
considered to be "integral" with the main body portion as argued by the examiner
(answer, p. 4), Widlund's flaps are not integral with the main body portion and folded
Appeal No. 2005-1242
Application No. 09/242,014
Page 6
along fold lines and attached to the garment facing side of the main body portion such
that the side wrapping elements are pre-positioned in an in-use-position prior to the use
of the disposable absorbent article.
For the reasons set forth above claim 1 is not anticipated by Widlund.
Accordingly, the decision of the examiner to reject claim 1 under 35 U.S.C. § 102(b) is
reversed.
Appeal No. 2005-1242
Application No. 09/242,014
Page 7
CONCLUSION
To summarize, the decision of the examiner to reject claims 1 under 35 U.S.C.
§ 102(b) is reversed.
REVERSED
JOHN P. McQUADE )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JEFFREY V. NASE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
Appeal No. 2005-1242
Application No. 09/242,014
Page 8
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