Ex Parte SEITZ et al

Patent Trials and Appeals Board

Jun 21, 2019

14309158 - (D) (P.T.A.B. Jun. 21, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/309,158 06/19/2014
27752 7590 06/25/2019
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.
12816M 7605
EXAMINER
VASAT,PETERS
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
06/25/2019 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 and GARY DEAN LA VON
Appeal2018-003700
Application 14/309, 158 1
Technology Center 3700
Before ANTON W. PETTING, PHILIP J. HOFFMANN, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner's rejection of claims 21--40. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is "The Procter &
Gamble Company." Appeal Brief filed June 21, 2017 ("Appeal Br."), 1.
Appeal2018-003700
Application 14/309,158
According to Appellants, the "disclosure relates to an offering of an
array of disposable absorbent articles sized to fit a broad range of wearers."
Spec., 1, 11. 9-10. Claims 21 and 40 are the independent claims on appeal.
Below, we reproduce claim 21 as illustrative of the appealed claims.
21. An array of packages comprising three or more
different sizes of absorbent articles, the array comprising:
a first package comprising a first absorbent article having
a first leg circumference, a first waist circumference, and a first
pitch;
a second package comprising a second absorbent article
having a second leg circumference, a second waist
circumference, and a second pitch;
a third package comprising a third absorbent article having
a third leg circumference, a third waist circumference, and a third
pitch;
wherein at least one of the second leg circumference,
second waist circumference, and second pitch is different from
at least one of the first leg circumference, first waist
circumference, and first pitch;
wherein at least one of the third leg circumference, third
waist circumference, and third pitch is different from at least one
of the first leg circumference, first waist circumference, and first
pitch;
wherein at least one of the third leg circumference, third
waist circumference, and third pitch is different from at least one
of the second leg circumference, second waist circumference,
and second pitch;
wherein the first absorbent article comprises:
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;
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Application 14/309,158
wherein the front and back belts are joined at seams
to form a waist opening and leg openings;
the front belt comprising a first film;
the back belt comprising a second film;
wherein at least one of the front and back belts
comprise a plurality of elastic strands disposed along a
portion of the leg openings;
wherein a portion of one of the front and back belts
is folded to form a waist edge;
wherein at least one of the front and back belts is
shaped;
wherein the second absorbent article comprises:
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;
the front belt comprising a first film;
the back belt comprising a second film;
wherein at least one of the front and back belts
comprise a plurality of elastic strands disposed along a
portion of the leg openings;
wherein a portion of one of the front and back belts
is folded to form a waist edge;
wherein at least one of the front and back belts is
shaped;
wherein the third absorbent article comprises:
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;
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Appeal2018-003700
Application 14/309,158
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;
the front belt comprising a first film;
the back belt comprising a second film;
wherein at least one of the front and back belts
comprise a plurality of elastic strands disposed along a
portion of the leg openings;
wherein a portion of one of the front and back belts
is folded to form a waist edge;
wherein at least one of the front and back belts is
shaped;
wherein the first, second, and third packages comprise at
least one of a same brand name, a same sub-brand name, a same
manufacturer, and trademarks; and
wherein an Array Elastic Modulus of the Belt of the first,
second, and third package is from about 6 gf/mm to about 15
gf/mm.
REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
I. Claims 21-25 and 27--40 under 35 U.S.C. § 103 as unpatentable
over Fell et al. (US 2008/0082070 Al, pub. Apr. 3, 2008)
("Fell") and Fujimoto et al. (US 2007/0287975 Al, pub. Dec.
13, 2007) ("Fujimoto");
II. Claim 22 under 35 U.S.C. § 103 as unpatentable over Fell,
Fujimoto, and La Von et al. (US 2008/0208155 Al, pub.
Aug.28,2008);and
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Application 14/309,158
III. Claim 26 under 35 U.S.C. § 103 as unpatentable over Fell,
Fujimoto, and Olson et al. (US 2003/0135186 Al, pub. July 17,
2003).
ANALYSIS
Rejection I
In the rejection of independent claim 21, the Examiner relies on Fell
to disclose a number of the claim recitations. Final Action 3---6. The
Examiner finds, however, that Fell does not disclose that each of first,
second, and third absorbent articles includes either a front or back belt
comprising a plurality of elastic strands, or "wherein an Array Elastic
Modulus of the Belt of the first, second, and third package [ of first, second,
and third absorbent articles] is from about 6 gf/mm to about 15 gf/mm." Id.
at 6-8; see Appeal Br., Claims App. Nonetheless, the Examiner finds that
Fujimoto discloses the claimed belts that comprise a plurality of elastic
strands, and determines that it would have been obvious to combine Fell and
Fujimoto. Final Action 8-9. The Examiner further determines that the
claimed elastic modulus of the belts of each of the first, second, and third
packages/ absorbent articles is inherent to the combination of Fell and
Fujimoto, and that it would have been obvious to provide the combination
with the claimed elastic modulus. Id.
Appellants argue that the rejection is in error, as the Examiner does
not establish "that because Fell's/Fujimoto's articles are constructed in a like
way to Appellants', that Fell's/Fujimoto's articles would inherently have the
claimed modulus." Appeal Br. 4. Even if we agree with Appellants that the
claimed elastic modulus is not inherent to the combination of Fell and
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Application 14/309,158
Fujimoto, however, this does not show that the Examiner errs in determining
that it would have been obvious to provide the combination of Fell and
Fujimoto with the claimed elastic modulus of the belts of each of the first,
second, and third packages/absorbent articles.
Further, although Appellants argue that "Fell and Fujimoto fail to
disclose or suggest the key motivations that are central to Appellants'
claimed invention and, thus, do not make Appellants' claimed Array Elastic
Modulus obvious" (Appeal Br. 7 (bold omitted)), Appellants do not
persuade us of error. This is because the Examiner determines that, based on
the disclosure ofFell's paragraph 15, "one of ordinary skill in the art would
have been motivated to optimize the Elastic Modulus of Belt for each article
in the array in order to provide an array of absorbent articles that snugly
conforms to the anatomy of the widest consumer population possible."
Answer 5---6. Appellants do not address this specific, proffered motivation,
based on an express factual finding. Therefore, Appellants do not show
error on the Examiner's part.
Thus, based on the foregoing, we sustain the Examiner's obviousness
rejection of independent claim 21. We also sustain the Examiner's rejection
of claims 22-25 and 27-39 that depend from claim 21, and which
Appellants do not argue separately.
With respect to independent claim 40, Appellants argue that the claim
is "not obvious in light of Fell in view of Fujimoto for the reasons above
(that Fell and Fujimoto [do not] disclose the claimed Array Elastic
Modulus)." Appeal Br. 6 (bold omitted). Appellants do not persuade us of
error for substantially the same reasons as those discussed above regarding
claim 21.
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Application 14/309,158
Appellants further argue that the Examiner erroneously rejects
claim 40 "because the claimed array of at least three articles comprise[ s]
films in their front and back belts-which [neither] Fell nor Fujimoto, nor
the marketed product arrays cited by Appellant[s], disclose[s] or suggest[s]."
Id. (bold omitted). Appellants do not persuade us of error, however.
Appellants base their argument on an assertion that the products in their
Table 3 are not films. Id. at 6-7. Appellants do not address the Examiner's
express finding, though, that "Fujimoto explicitly teaches in
[p ]aragraph [0028] that 'the front and back belt 84, 86 can be manufactured
from a wide range of materials such as plastic films; apertured plastic
films .... "' Answer 6-7. Appellants also do not address the Examiner's
express determination that "Fujimoto in [p ]aragraph [0029] ... states that
'[t]he waist elastic material 98 may comprise one or more of elastic elements
such as strands or panels extending in the transverse direction.' It is noted
that an elastic 'panel' is an elastic film." Id. at 7.
We also are unpersuaded by Appellants' argument that "one of
ordinary skill ... would [have] appreciate[ d] the challenges of designing an
array with film versus strands, [because] strands and film are not
interchangeable as the two materials have distinctly different properties."
Appeal Br. 7. Appellants do not support factually this argument; and, the
argument appears to be contrary to the above statements from Fujimoto's
paragraphs 28 and 29. Thus, based on the foregoing, we sustain the
Examiner's obviousness rejection of independent claim 40.
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Reiections II and III
Claims 22 and 26 depend from independent claim 21, the rejection of
which we sustain. Appellants do not argue separately against these
dependent claims' rejections. Thus, we also sustain the Examiner's
obviousness rejections of claims 22 and 26.
DECISION
We AFFIRM the Examiner's obviousness rejections of claims 21--40.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.
AFFIRMED
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