Ex Parte Sigl

Board of Patent Appeals and Interferences

Mar 22, 2006

10037377 (B.P.A.I. Mar. 22, 2006)

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for publication and is not binding precedent of the Board.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 WAYNE CLEMENT SIGL
____________

Appeal No. 2006-0041
Application No. 10/037,377
____________

ON BRIEF
____________

Before McQUADE, CRAWFORD, and TIMM, Administrative Patent Judges.
TIMM, Administrative Patent Judge.

DECISION ON APPEAL
This appeal involves claims 1, 5, 8-11, 13-15, 19, and 22-25. Claims 4, 12, 18,
and 26, the only other claims pending in this application, have been withdrawn from
consideration by the Examiner. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 134.

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Application No. 10/037,377

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INTRODUCTION
The claims are directed to an absorbent article such as a labial pad. The article
includes a liquid-impermeable baffle, an absorbent, and a retainer flap extending over
the baffle such that the baffle is between the retainer flap and the absorbent. The
absorbent article has both a body-facing surface, and a body-opposing surface, and is
shaped to fit within a female user’s vestibule.
Claim 15 illustrates the invention on appeal:
15. An absorbent article, comprising:

(a) a liquid-impermeable baffle;

(b) an absorbent, said absorbent article being configured for disposition
primarily within a vestibule of a female wearer, said absorbent article
having a central longitudinal axis, an outer edge defining a first outer
perimeter of said absorbent article, a body-faceable surface, and a surface
opposed to the body-faceable surface; and

(c) a retainer flap extending over said baffle and covering greater than about
40 percent of the surface opposed to the body-faceable surface such that
said baffle is between said retainer flap and said absorbent, said retainer
flap having a second outer perimeter, the second outer perimeter having
first and second portions, the first portion being disposed proximate the
first outer perimeter of said absorbent article, and being generally attached
in said absorbent article at or adjacent the first outer perimeter, the second
portion of the outer perimeter of said retainer flap extending across an
outer surface of said baffle whereby said retainer flap covers a portion of
said baffle, the second portion of the second outer perimeter of said
retainer flap being displaceable from said baffle thereby to define a first
cavity between said retainer flap and said baffle.

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Application No. 10/037,377

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The Examiner rejects the claims under both 35 U.S.C. § 112 ¶ 2 and 35 U.S.C.
§ 103(a).
With regard to the rejection under 35 U.S.C. § 103(a), the Examiner relies on the
following prior art references to show unpatentability:

Srinvasan et al. (Srinvasan) US 3,973,567 August 10, 1976
Lenaghan US 4,405,326 September 20, 1983
Lassen et al. (Lassen) US 4,631,062 December 23, 1986
Houghton et al. (Houghton) US 5,706,950 January 13, 1998
Richardson US 6,623,466 September 23, 2003
(eff. filed Oct. 23, 1997)
Molnlycke WO 88/06008 August 25, 1988

The rejections as presented by the Examiner are as follows:
A. Claims 1, and 13-15 rejected under 35 U.S.C. § 112, ¶ 2, as being
indefinite for failing to particularly point out and distinctly claim the subject matter
which applicant regards as the invention;
B. Claims 1, 5, 11, 13, 15, 19 and 25 rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Molnlycke and Lassen;
C. Claims 8-10 and 22-24 rejected under 35 U.S.C. § 103(a) as being unpatentable
over Molnlycke and Lassen, and in further combination with Lenaghan and
Srinvasan; and
D. Claim 14 rejected under 35 U.S.C. § 103(a) as being unpatentable over
Molnlycke and Lassen, and in combination with Houghton and Richardson.

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Application No. 10/037,377

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OPINION
We reverse with respect to the rejection under 35 U.S.C. § 112, ¶ 2, but affirm
with respect to the rejections under 35 U.S.C. § 103(a). Our reasons follow.
A. Rejection under 35 U.S.C. 112, ¶ 2
The rejection of claims 1 and 13-15 as indefinite under 35 U.S.C. § 112, ¶ 2 is
based on the Examiner’s determination that, “the range of percentages of the coverage
of the surface opposed to the body-faceable surface by the retainer flap is unclear.”
(Answer, Pg. 3). This lack of clarity is due to what the Examiner perceives as an
inconsistency between two limitations found in the independent claims, i.e. the limitation
“covering greater than about 40 percent” and the limitation “covers a portion.” (C.f.
Claim 15, lines 8-9 and 16-17). According to the Examiner:
[I]f the flap covers 100% of the surface as set forth on lines 8-9
than [sic; then] the flap covers more than just a portion of the baffle
as set forth on lines 16-17. Note also claims 19, 22, last two lines,
and 25 which set forth the range being less than 100%. In other
words, it is unclear whether 100% of the surface opposed to the
body faceable surface is covered by the retainer flap or only a
portion thereof.

(Answer, Pg. 3).
According to 35 U.S.C. § 112, ¶ 2, "[t]he specification shall conclude with one or
more claims particularly pointing out and distinctly claiming the subject matter which the
applicant regards as his invention." The primary purpose of the definiteness
requirement is to ensure that the claims are written in such a way that they give notice
Comment [COMMENT1]: I added a
restatement of the rejection to the
beginning of the sentence for clarity. I
prefer not to rely on the heading alone
to introduce the subject matter. I
changed “found” to “determine”
because the examiner’s statement
touches on the legal question of
indefiniteness and is not purely a
factual finding.

Comment [COMMENT2]: No
necessary. We are reverseing on a
different basis than argued by
appellant.

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to the public the extent of the legal protection afforded by the patent, so that interested
members of the public, e.g., competitors of the patent owner, can determine whether or
not they infringe. All Dental Prodx LLC v. Advantage Dental Products Inc., 309 F.3d
774, 780, 64 USPQ2d 1945, 1949 (Fed. Cir. 2002), citing Warner-Jenkinson, 520 U.S.
at 28-29. (Fed. Cir. 1997). The standard is one of reasonableness: The claims must set
out and circumscribe a particular area with a reasonable degree of precision and
particularity. In re Moore, 439 F.2d 1232, 1235, 169 USPQ 236, 239 (Fed. Cir. 1971);
see In re Warmerdam, 33 F.3d 1354, 1361, 31 USPQ 2d 1754, 1761 (Fed. Cir. 1994)
(The legal standard for definiteness is whether a claim reasonably apprises those of skill
in the art of its scope.)
Claim 15 discloses an absorbent article that comprises a baffle, an absorbent,
and a retainer flap. Lines 8-9 recite: “a retainer flap extending over said baffle and
covering, greater than about 40 percent of the surface.” Lines 16-17 recite: “whereby
said retainer flap covers a portion of said baffle.”
We determine that the Examiner has misinterpreted the claim. According to the
Examiner’s interpretation, “greater than about 40 percent” means “greater than from 40
percent to 100 percent.” However, “greater than about 40 percent” means just that:
“greater than about 40 percent”. There is no limitation placed on the upper endpoint of
the range.
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Also, we determine that the limitation, “greater than 40 percent” can be
interpreted consistently with “portion” in the context of the claim. Subsequent language
in a claim can further limit an earlier presented limitation. It is entirely possible for a
retainer flap to extend greater than about 40 percent of the surface and also cover a
portion of the baffle. One of ordinary skill in the art would be reasonably apprised of
range of coverage afforded by these two limitations.
Therefore, we conclude that the examiner has failed to establish indefiniteness
within the meaning of 35 U.S.C. § 112, ¶ 2.
B. Rejections under 35 U.S.C. § 103(a)
The examiner maintained three grounds of rejection, as discussed below:
1. Rejection of claims 1, 5, 11, 13, 15, 19 and 25 over
Molnlycke in combination with Lassen.
The Examiner rejects claims 1, 5, 11, 13, 15, 19 and 25 over
Molnlycke in combination with Lassen. Because Appellant does not
argue any claim apart from the others, we select a single claim,
claim 15, to represent the issues on appeal.
The Examiner rejected the claims because, “to combine a
sanitary napkin, such as that taught by [Lassen], which is
configured for disposition primarily within the vestibule of a
female wearer as well as packaged in a separate receptacle[,
with] the sheet 4 of [Molnlycke would have been] obvious to one
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The claim 15 is directed to an absorbent article such as a
labial pad that fits within a vestibule of a female wearer.
Lassen teaches such a pad (Col. 9, lines 60-65). As required by
claim 15, the pad of Lassen has a baffle that functions as a
fluid-impermeable shield, and an absorbent within the baffle that
is shaped to fit within a vestibule of a female. (Fig. 1; Col.
13, lines 1-35; and Col. 20, lines 55-60). However, Lassen fails
to teach a retainer flap attached to the absorbent article as
further required by claim 15. Molnlycke teaches a disposable
article that includes an absorbent body, liquid impermeable
layer, and a sheet that is attached to the absorbent body and the
liquid impermeable layer. (Pg. 1, lines 1-5 and Pg. 2, lines 4-
11 and 30-37). The sheet may be of different sizes, and can be
of ordinary skill in the art in view of the recognition that such
a configured sanitary napkin [was] conventional and such
combination would obviate the need for a separate receptacle,
i.e. cost and use efficient, and the desire of Molnlycke to ...
combine the sheet 4 with any conventional sanitary napkin to
obviate the need for a separate package.” (Answer, Pg. 6).
Appellant has failed to persuade us that the Examiner
committed reversible error with regard to the rejection over
Molnlycke and Lassen for the following reasons.
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First, we disagree with Appellant’s characterization of the
Molynlycke embodiments of Figures 1-2 and 3-5. These embodiments
are not, contrary to the argument of Appellant, limited to
teaching an elastic sheet 4 (the claimed retainer flap) on the
body faceable surface of an absorbent article. While Figure 1
depicts sheet 4 as being on the same side as the body-faceable
surface of the illustrated diaper, Molnlycke also discloses
pulling the end of the diaper inside-out, like pulling a pocket
folded over the absorbent body to serve as a package. (Pg. 2,
lines 35-37, and Pg. 6, lines 5-10). Therefore, the sheet allows
the absorbent article to be carried in a hygienic manner after
use, without the need of a separate bag. (Abstract, last
sentence).
Appellant argues that “the cited references cannot be
combined as suggested by the Examiner to render the claimed
invention obvious.” (Brief, Pg. 6). Is so arguing, Appellant
focuses on the specific embodiments of Molnlycke that include a
diaper as shown in Figures 1 and 2 and an incontinence protector
as shown in Figures 3-5. The Appellant then concludes that
neither the embodiment of Figures 1-2 nor the embodiment of
Figures 3-5 of Molnlycke can form the basis of the obviousness
rejection. (Brief, Pg. 6-7).
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out of trousers, so that “[t]he sheet 4 will thus be situated on
the same side of the absorbent body as the outer layer 3” before
the diaper is used (Molnlycke, Pg. 3, lines 6-10). Therefore, in
the embodiment of Figures 1 and 2, Molnlycke describes an
absorbent article with a retainer flap (sheet 4) extending over
said baffle (outer layer 3) such that the retainer flap (sheet 4)
covers a portion of the surface opposed to the body-faceable
surface as claim 15 requires. The embodiment of Figures 3-5 also
places the sheet 4 (retainer flap) on the outer surface of the
incontinence protector. Furthermore, the Brief acknowledges that
the sheet 4 is in the claimed position by explaining that Figures
3-5 illustrate an incontinence protector for men “having a sheet
4 on the outer surface thereof.” (Brief, Pg. 7.)
Second, Appellant’s arguments too narrowly focus on the
specific embodiments of Molnlycke while ignoring other
disclosures within the reference. It is well settled that a
prior art reference is relevant for all that it teaches to those
of ordinary skill in the art. In re Fritch, 972 F.2d 1260, 1264,
23 USPQ2d 1780, 1782 (Fed. Cir. 1992). See also Merck & Co v.
Biocraft Laboratories, 874 F.2d 804, 807, 10 USPQ2d 1843, 1847
(Fed. Cir. 1989) (A reference may be relied upon for all that it
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would have reasonably suggested to one having ordinary skill in
the art, including non-preferred embodiments); Panduit Corp. v.
Dennison Mfg. Co., 810 F.2d 1561, 1568, 1 USPQ2d 1593, 1597,
cert. denied, 107 S.Ct. 2187 (Fed. Cir. 1987) (In determining
obviousness, a prior patent must be considered in its entirety).
Molnlycke discloses that “the sheet 4 simply constitutes an
addition to conventional absorbent articles, such as diapers and
sanitary towels.” (Molnlycke, Pg. 3, lines 25-27). Lassen
describes a conventional absorbent article. Lassen shows that
the pad is kept in a separate package (Figs. 11-13), just the
type of packaging Molnlycke seeks to replace. The suggestion to
include a retainer flap on the absorbent article of Lassen flows
from the express disclosures of the references. The fact that
Molnlycke further discusses specific embodiments of absorbent
articles does not negate the broader disclosure within the
reference.
Nor can we agree that Molnlycke teaches away from a flap
covering greater than about 40 percent of the surface as argued
by Appellant (Brief, Pg. 6). While the Appellant correctly notes
that Figures 1 and 2 depict a narrow retainer flap, other
disclosures within Molnlycke indicate that the extent of the flap
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varies with the design of the particular absorbent article. For
example, Molnlycke teaches that the configuration and dimensions
of the sheet 4 can be modified (Molnlycke, Pg. 6, lines 5-8). It
follows that the determination of the workable or optimal extent
of the retainer flap is a matter within the capabilities of the
ordinary artisan. In such a situation, it falls on Appellant to
show an unexpected result for the particular claimed extent. See
In re Huang, 100 F.3d 135,139, 40 USPQ2d 1685, 1688 (Fed. Cir.
1996) and In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA
1955).
We conclude that the Examiner has established a prima facie
case of obviousness with respect to the subject matter of claims
1, 5, 11, 13, 15, 19, and 25 which has not been sufficiently
rebutted by Appellant.
2. Rejection of claims 8-10 and 22-24 over Molnlycke and
Lassen, and further in combination of Lenaghan and Srinvasan.
To reject claims 8-10 and 22-24, the Examiner added Lenaghan
and Srinvasan as further evidence of obviousness. Appellant’s
argument again focuses on the combination of Molnlycke and Lassen
as it applies to claims 1 and 15. There being no new argument
over and above what we have already addressed, we conclude that
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Application No. 10/037,377

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the Examiner has established a prima facie case of obviousness
with respect to the subject matter of claims 8-10 and 22-24 which
has not been sufficiently rebutted by Appellant.
3. Rejection of Claim 14 over Molnlycke and Lassen, and
further in combination of Houghton and Richardson.
To reject claim 14, the Examiner added Houghton and
Richardson as further evidence of obviousness. Again, Appellant
presents no new argument over and above what we have already
addressed. We conclude that the Examiner has established a prima
facie case of obviousness with respect to the subject matter of
claim 14 which has not been sufficiently rebutted by Appellant.
Based upon a review of the totality of the evidence of
record with due consideration of the arguments advanced by the
Appellant, we conclude that a preponderance of the evidence
supports a legal conclusion of obviousness within the meaning of
35 U.S.C. § 103(a). We therefore affirm the decision of the
Examiner to reject the claims as obvious.
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CONCLUSION

In summary, while we do not sustain the rejection under 35
U.S.C. § 112, ¶ 2, we affirm the decision of the Examiner to
reject the claims on the grounds of obviousness.
Appeal No. 2006-0041
Application No. 10/037,377

Παγε 14
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED

JOHN P. McQUADE )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
MURRIEL E. CRAWFORD ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
CATHERINE TIMM )
Administrative Patent Judge )

CT/rwk

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Appeal No. 2006-0041
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