Ex Parte Steger et alDownload PDFPatent Trial and Appeal BoardFeb 22, 201310336136 (P.T.A.B. Feb. 22, 2013) 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. 10/336,136 01/03/2003 Paul S. Steger 17,936 6429 23556 7590 02/25/2013 KIMBERLY-CLARK WORLDWIDE, INC. Tara Pohlkotte 2300 Winchester Rd. NEENAH, WI 54956 EXAMINER HAND, MELANIE JO ART UNIT PAPER NUMBER 3778 MAIL DATE DELIVERY MODE 02/25/2013 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 PAUL S. STEGER, CHRISTINA M. RHEIN, and DAVID R. STEINIKE ____________________ Appeal 2010-006371 Application 10/336,136 Technology Center 3700 ____________________ Before: CHARLES N. GREENHUT, REMY J. VANOPHEM, and BART A. GERSTENBLITH, Administrative Patent Judges. VANOPHEM, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 21-40. We have jurisdiction under 35 U.S.C. § 6(b). Appeal 2010-006371 Application 10/336,136 2 The claims are directed to an absorbent feminine care article having first and second side panels having a selected overlap distance, selected panel-edge distance and selected fastener-edge distance when the side panels are arranged in a storage position. Claim 21, reproduced below, is illustrative of the claimed subject matter. 21. An absorbent feminine care article having a longitudinal direction. a lateral direction, first and second longitudinally opposed end portions, and a intermediate portion located between said end portions, said article comprising: a cover; a baffle; an absorbent body sandwiched between the cover and baffle; a first side-panel attached to a first lateral side region of the intermediate portion of the article, said first side-panel including a first panel- fastener component operatively joined to an engagement surface of said first side-panel; and a second side-panel attached to a second lateral side region of the intermediate portion of the article, said second side-panel including a second panel fastener component operatively joined to an engagement surface of said second side-panel; wherein the first and second side panels have an overlap distance of at least a minimum of about 40 mm when the side panels are arranged in their storage position; each said first and second side-panels has a terminal, laterally-distal, panel-edge portion; each said first and second panel-fastener component has a terminal, laterally-distal fastener- edge portion and a terminal inboard-edge portion; the laterally-distal fastener-edge portion of each panel-fastener component is located between Appeal 2010-006371 Application 10/336,136 3 a longitudinally-extending centerline of the article and the laterally-distal, panel-edge portion of its corresponding side-panel when the side panels are arranged in their storage position; the laterally-distal, fastener-edge portion of each panel-fastener component is laterally spaced from the longitudinally-extending centerline of the article by an outboard fastener-edge distance of at least about 9 mm when the side panels are arranged in their storage position; and the inboard-edge portion of each panel- fastener component is laterally spaced from the longitudinally-extending centerline of the article by an inboard-edge distance when the side panels are arranged in their storage position. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Goulait US 5,392,498 Feb. 28, 1995 Osborn, III et al US 5,674,212 Oct. 7, 1997 Hammons et al US 2003/0004484 A1 Jan. 2, 2003 Salone et al US 2004/0068244 A1 Apr. 8, 2004 REJECTIONS The Examiner made the following rejections: I Claims 21 and 25-30 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the teachings of Salone in view of the teachings of Hammons; II Claims 22-24 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the teachings of Salone and Hammons and further in view of the teachings of Osborn; and Appeal 2010-006371 Application 10/336,136 4 III Claims 31-40 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the teachings of Salone and Hammons as applied to claims 21 and 25-30 and further in view of the teachings of Goulait. Appellants seek our review of the above rejections. ANALYSIS Rejection of claims 21 and 25-30 as unpatentable over Salone and Hammons The Examiner finds that Salone teaches nearly all of the elements of independent claim 21 except that Salone does not explicitly teach that the first and second side panels 24 have an overlap distance of at least a minimum of about 40 mm when the side panels are arranged in their storage position. Ans. 5. The Examiner also finds that Hammons teaches a feminine sanitary napkin with embodiments wherein the flaps or side panels will have a minimum overlap distance between 0 and 75 mm. Id. at 5-6. The Examiner finds that the combined teaching of Salone and Hammons does not explicitly teach the fastener edge distance set forth in independent claim 21. Id. at 6. However, the Examiner finds that Appellants have not established sufficient criticality in the disclosure for a fastener edge distance of at least about 9 mm. Id. The Examiner further finds that Hammons has established the width of an article to be a result- effective variable, which in turn makes any relative distance with respect to the width between said first and second lateral edge regions, such as the fastener edge distance, a result-effective variable. Id. Appeal 2010-006371 Application 10/336,136 5 The Examiner concludes that it would be obvious to one of ordinary skill in the art to modify the flaps taught by the combined teaching of Salone and Hammons to yield a fastener edge distance that falls within the ranges claimed. Id. The Examiner further concludes that it has been held that where general conditions of a claim are disclosed in prior art, it is not inventive to discover optimum or workable ranges by routine experimentation. See In Re Aller, Lacey and Hall, 220 F.2d 454 (1955). Appellants contend that the Examiner has failed to provide any evidence as to how a proper combination of the teachings of Salone with the teachings of Hammons would teach that the lateral spacing of the fastener edge portion of each panel-fastener component from the longitudinally- extending centerline of the article when the side panels are arranged in their storage position is a result-effective variable. App. Br. 13. “[T]he discovery of an optimum value of a variable in a known process is normally obvious.” In Re Antonie, 559 F.2d 618, 620 (CCPA 1977) (citing In Re Aller, 220 F.2d 454 (CCPA 1955)). There is, however, an exception to the conclusion of obviousness when “the parameter optimized was not recognized to be a result-effective variable.” Id. In this instance, the Examiner failed to explain how or why one of ordinary skill in the art at the time of the invention would have recognized, based on Salone, Hammons, or knowledge of one of ordinary skill in the art at the time of the invention, that the lateral spacing of the fastener edge portion of each panel- fastener component from the longitudinally-extending centerline of the article is a result-effective variable, and specifically what property and quantity is a function of the lateral spacing of each panel-fastener edge. Appeal 2010-006371 Application 10/336,136 6 Accordingly, the Examiner’s rejection of independent claim 21 and dependent claims 25-30 under 35 U.S.C. § 103(a) as unpatentable over Salone and Hammons cannot be sustained. Rejection of claims 22-24 over Salone, Hammons, and Osborn The Examiner rejected dependent claims 22-24 as being unpatentable over the combined teachings of Salone, Hammons, and Osborn. The teachings of Osborn do not cure the shortcomings of Salone and Hammons as discussed supra. Therefore, we will not sustain the rejection of dependent claims 22-24 under 35 U.S.C. § 103(a). Rejection of claims 31-40 over Salone, Hammons, and Goulait The Examiner rejected dependent claims 31-40 as being unpatentable over the combined teachings of Salone, Hammons, and Goulait. The teachings of Goulait do not cure the shortcomings of Salone and Hammons as discussed supra. Therefore, we will not sustain the rejection of dependent claims 31-40 under 35 U.S.C. § 103(a). DECISION REVERSED Klh Copy with citationCopy as parenthetical citation