Ex Parte SEITZ et al

Patent Trials and Appeals Board

May 24, 2019

14809334 - (D) (P.T.A.B. May. 24, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/809,334 07/27/2015
27752 7590 05/29/2019
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Bret Darren SEITZ
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
13559C 9542
EXAMINER
ANDERSON, CATHARINE L
ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
05/29/2019 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
centraldocket.im @pg.com
pair_pg@firsttofile.com
mayer.jk@pg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRET DARREN SEITZ, GARY DEAN LA VON,
JILL TRYGIER, and VANESSA MELENDEZ
Appeal2018-008659
Application 14/809,334
Technology Center 3700
Before CHARLES N. GREENHUT, JAMES P. CALVE, and
BRETT C. MARTIN, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant, The Procter & Gamble Company, appeals under 35 U.S.C.
§ 134 from a rejection of claims 1-30. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
Appeal2018-008659
Application 14/809,334
CLAIMED SUBJECT MATTER
The claims are directed to absorbent articles. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. An absorbent article having a central chassis, the central
chassis comprising a topsheet, a backsheet and an absorbent core,
the absorbent article comprising:
a front waist region and a front waist edge;
a back waist region and a back waist edge;
a front belt disposed in the front waist region;
a back belt disposed in the back waist region;
wherein the front and back belts are joined at seams to
form a waist opening and leg openings;
wherein the front belt comprises a first film;
wherein the back belt comprises a second film;
a plurality of elastic strands disposed along a portion of the
leg openings;
wherein the article has a Product Length-to-Hip Silhouette
from 0.9 to about 0.3 when the article is laid out, relaxed, and
configured as pant; and
wherein the article comprises a Relaxed Product Length of
greater than about 255 mm.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Betts
Takahashi
US 7,931,632 B2
US 2013/0226127 Al
REJECTIONS
Apr. 26, 2011
Aug.29,2013
Claims 1-8 are rejected under 35 U.S.C. § 103 as being unpatentable
over Takahashi.
Claims 9-30 are rejected under 35 U.S.C. § 103 as being unpatentable
over Takahashi and Betts.
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Appeal2018-008659
Application 14/809,334
OPINION
All claims are argued as a group (App. Br. 4--8), pointing out each of
the independent claims before us, claims 1, 9 and 30 contain similar
recitations regarding the argued subject matter, the "Product Length-to-Hip
Silhouette from 0.9 to about 0.3 [or 0.5 (claim 30)]." App. Br. 4 (emphasis
omitted). Appellant does not take issue with the Examiner's findings
concerning Takahashi. The Examiner acknowledged that Takahashi was
silent as to the specific dimensions recited and argued and provided the
following analysis:
The Product Length-to-Hip Silhouette is a ratio of the body
length to the hip width of the article, and the relaxed product
length is the length from the crotch portion to the waist of the
article. The length and width of the article is a result-effective
variable since changes in the length and width of the article result
in a change in the size of the article. Changes in size are an
obvious modification in the art of wearable articles. It would
therefore have been obvious to one of ordinary skill in the art
prior to the effective filing date of the claimed invention to
provide the article of Takahashi with a Product Length-to-Hip
Silhouette from 0.9-0.3 and a Relaxed Product Length of greater
than about 255 mm, since optimizing the ratio of the length to
the width of the article would have been an obvious modification
to change the size of the article.
Final Act. 4.
Appellant does not take issue with any specific fact finding made by
the Examiner in the analysis above or challenge any specific aspect of the
Examiner's reasoning. Instead, Appellant argues that the Examiner's
conclusion of obviousness is erroneous because the recited dimensions differ
significantly from those of the adult incontinence pants that were
commercially available at the time of filing:
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Appeal2018-008659
Application 14/809,334
[T]he Product Length-to-Hip Silhouettes and the Array Average
Product Length-to-Hip Silhouette claimed by Applicants are not
obvious modifications to absorbent articles. Applicants' position
is supported by several examples of the adult incontinence pants
on the market at the time of filing that fall outside of Applicants'
claimed range
App. Br. 4 ( emphasis omitted); see also App. Br. 8.
First, as the Examiner points out, the evidence cited regarding adult
incontinence pants is not commensurate with the scope of the claims which
involve "absorbent articles" in general. Ans. 3. Second, obviousness is an
objective, rather than a subjective, inquiry. The fact that specific
manufacturers opted not to use the dimensions specified is not particularly
enlightening. At most, it shows there may exist a difference between the
claimed subject matter and relevant prior art. The existence of a difference
may demonstrate novelty but such differences are only factors to be
considered in the obviousness inquiry. See 35 U.S.C. § 103; Graham v. John
Deere Co., 383 U.S. 1, 17, 24--26 (1966). Third, the mere pursuit of
alternatives by other manufacturers does not, without more, demonstrate
nonobviousness because there are various reasons a manufacturer might not
market a particular product. For example, "[t]hat a given combination would
not be made by businessmen for economic reasons does not mean that
persons skilled in the art would not make the combination because of some
technological incompatibility. Only the latter fact would be relevant [to
obviousness]." In re Farrenkopf, 713 F.2d 714, 718 (Fed. Cir. 1983).
Finally, evidence typically taken into consideration in "cases in which the
difference between the claimed invention and the prior art is some range or
other variable within the claims ... generally [involves] showing that the
claimed range achieves unexpected results relative to the prior art range." In
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Appeal2018-008659
Application 14/809,334
re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990). As the Examiner points
out (Ans. 3--4), no such evidence has been provided here. For the foregoing
reasons, on the record before us, we agree with the Examiner that the
claimed subject matter is the product of no more than the routine
optimization of known result-effective variables. See In re Aller, 220 F.2d
454, 456 (CCPA 1955) ("[W]here the general conditions of a claim are
disclosed in the prior art, it is not inventive to discover the optimum or
workable ranges by routine experimentation."); In re Antonie, 559 F.2d 618
(CCPA 1977).
DECISION
The Examiner's rejections are affirmed.
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)(l )(iv).
AFFIRMED
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