Ex Parte Underhill et alDownload PDFPatent Trial and Appeal BoardSep 13, 201310424655 (P.T.A.B. Sep. 13, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte KIMBERLY KAY UNDERHILL and BRIAN WALTER ANGIELSKI ____________________ Appeal 2011-010958 Application 10/424,655 Technology Center 3700 ____________________ Before JAMES P. CALVE, JILL D. HILL, and JEREMY M. PLENZLER, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-010958 Application 10/424,655 2 STATEMENT OF CASE Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s decision rejecting claims 13, 15-17, 19, and 22-32. Claims 1-12, 14, 18, 20, and 21 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER Claim 13 is the sole independent claim on appeal and is reproduced below: 13. A package for housing a disposable absorbent pant product, said package comprising: a pocket having an inner surface, an outer surface, a front surface, and a display window disposed within a portion of said front surface; not more than 5 disposable absorbent pant products in the pocket, each disposable absorbent pant product comprising: an absorbent pad positioned between a topsheet and a backsheet; a back panel; a back waist elastic disposed on said back panel; and a crotch panel rolled toward said back waist elastic to create a rolled configuration or folded toward said back panel to create a folded configuration; a device for hanging the package; and a flap attached to said pocket, said flap attached to said pocket using one or more of the following: a zip type seal, buttons, snaps, hooks, and a loop fastening element, wherein at least a portion of at least one disposable absorbent pant product of the not more than 5 disposable absorbent pant products is visible through said display window, and the crotch panel of the at least one disposable absorbent pant product is not visible through said display window due to the rolled configuration or the folded configuration. Appeal 2011-010958 Application 10/424,655 3 REJECTIONS 1. Claims 13, 15-17, 19, 22-29, and 32 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nemoto (JP 2000-042028; pub. Feb. 15, 2000), MacDonald (US 5,967,665; iss. Oct. 19, 1999), and Bell (US 4,986,673; iss. Jan. 22, 1991); 2. Claims 13, 15-17, 19, 22-29, and 32 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nemoto, MacDonald, and Hanson (US 2004/0120613 A1; pub. Jun. 24, 2004); 3. Claims 30 and 31 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nemoto, MacDonald, Bell, Hanson, Bechyne (US 6,913,146 B2; iss. Jul. 5, 2005), and Bauer (US 6,079,562; iss. Jun. 27, 2000); and 4. Claims 30 and 31 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nemoto, MacDonald, Bell, Hanson, Bechyne, and Snell (US 7,150,354 B2; iss. Dec. 19, 2006). OPINION Claims 13, 15-17, 19, 22-29, and 32 – Nemoto/MacDonald/Bell Appellants argue claims 13, 15-17, 19, 22-29, and 32 as a group. See App. Br. 8-12. We select claim 13 as representative. Claims 15-17, 19, 22- 29, and 32 stand or fall with claim 13. The Examiner finds that Nemoto discloses the majority of the features recited in claim 13, but does not disclose the specific features of the absorbent pant product or the display window. Ans. 5. The Examiner finds that MacDonald discloses these additional features and proposes modifying Nemoto accordingly. Ans. 5-6. Appeal 2011-010958 Application 10/424,655 4 Appellants contend that it is improper to combine the teachings of Nemoto and MacDonald because the proposed modifications would render MacDonald inoperable for its intended purpose. App. Br. 9-10; Reply Br. 5. However, the Examiner has not proposed any modifications to MacDonald. Instead, and as explained above, the Examiner proposes modifying Nemoto based on the disclosure of MacDonald. Thus, Appellants’ arguments do not apprise us of Examiner error. Appellants additionally allege that impermissible hindsight is the basis for the Examiner’s rejections because every feature disclosed in MacDonald has not been incorporated into Nemoto in the Examiner’s proposed modifications. App. Br. 3-4, 6-7; Reply Br. 3-4. This argument is not persuasive of Examiner error because no such requirement exists. The relevant inquiry is whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of the references. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). While Appellants explain that differences exist among the references, Appellants do not persuasively explain why the Examiner’s proposed modifications would not have been obvious. For example, Appellants explain that Nemoto does not describe the use of graphics on the diapers and that MacDonald requires the bottom edges of the training pants to contact a bottom wall of the package. Reply Br. 3, 5-7. However, claim 13 does not require graphics on the diapers. The Examiner simply references the graphics when explaining the function of the window in MacDonald that allows a portion of the absorbent pant product to be visible through the window. See Ans. 5. Further, the Examiner does not rely on MacDonald for the manner in which the training pants are packaged. Appeal 2011-010958 Application 10/424,655 5 Instead, the Examiner proposes modifying Nemoto based on the training pant and window features discussed in MacDonald. See Ans. 5. For these reasons, we are not apprised of Examiner error and we sustain the rejection of claims 13, 15-17, 19, 22-29, and 32 as unpatentable over Nemoto, MacDonald, and Bell. Claims 13, 15-17, 19, 22-29, and 32 – Nemoto/MacDonald/Hanson Appellants argue claims 13, 15-17, 19, 22-29, and 32 as a group. See App. Br. 12-14. We select claim 13 as representative. Claims 15-17, 19, 22-29, and 32 stand or fall with claim 13. Appellants’ arguments are similar to those discussed above regarding the rejection based on the combination of Nemoto, MacDonald, and Bell and are not persuasive for similar reasons. See App. Br. 12-13 and Reply Br. 1- 7. We also sustain the rejection of claims 13, 15-17, 19, 22-29, and 32 as unpatentable over Nemoto, MacDonald, and Hanson. Claims 30 and 31 – Nemoto/MacDonald/Bell/Hanson/Bechyne/Bauer Claims 30 and 31 depend from claim 13 and Appellants rely on arguments similar to those presented regarding claim 13 for the patentability of claims 30 and 31. See App. Br. 14-16. We do not find these arguments persuasive for the reasons set forth above and we sustain the rejection of claims 30 and 31 as unpatentable over Nemoto, MacDonald, Bell, Hanson, Bechyne, and Bauer. Appeal 2011-010958 Application 10/424,655 6 Claims 30 and 31 – Nemoto/MacDonald/Bell/Hanson/Bechyne/Snell Claims 30 and 31 depend from claim 13 and Appellants rely on arguments similar to those presented regarding claim 13 for the patentability of claims 30 and 31. See App. Br. 16-18. We do not find these arguments persuasive for the reasons set forth above and we sustain the rejection of claims 30 and 31 as unpatentable over Nemoto, MacDonald, Bell, Hanson, Bechyne, and Snell. DECISION We AFFIRM the Examiner’s decision to reject claims 13, 15-17, 19, and 22-32. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED ke Copy with citationCopy as parenthetical citation