Ex Parte Van Gompel et al

Patent Trial and Appeal Board

Sep 3, 2014

11638219 (P.T.A.B. Sep. 3, 2014)

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.
11/638,219 12/13/2006 Paul T. Van Gompel 64039570US11 3264
23556 7590 09/03/2014
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
ANDERSON, AMBER R
ART UNIT PAPER NUMBER
3765
MAIL DATE DELIVERY MODE
09/03/2014 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 T. VAN GOMPEL and
RUSSELL E. THORSON
____________________

Appeal 2012-004301
Application 11/638,219
Technology Center 3700
____________________

Before: JENNIFER D. BAHR, LYNNE H. BROWNE, and
BRANDON J. WARNER, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/638,219

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STATEMENT OF THE CASE
Paul T. Van Gompel and Russell E. Thorson (Appellants) appeal
under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–11,
13, and 16–23 under 35 U.S.C. § 102(e) as being anticipated by Balogh (US
2003/0088230 A1, published May 8, 2003). We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A disposable undergarment comprising:
a front body panel comprising a pair of opposite first side
edges, a first terminal edge and a first cut edge spaced from said
first terminal edge and defining a first wave pattern, said first
wave pattern further defining a first maximum rise and a first
minimum rise of said front body panel along a first direction,
wherein said first maximum rise is greater than said first
minimum rise such that said first cut edge further defines a first
amplitude of said first wave pattern, and wherein said opposite
first side edges are spaced along a second direction, said second
direction being substantially perpendicular to said first
direction, said opposite first side edges defining a first pitch of
said first wave pattern, and wherein said front body panel is
stretchable in at least said second direction;
a rear body panel comprising a pair of opposite second
side edges, a second terminal edge and a second cut edge
spaced from said second terminal edge and defining a second
wave pattern, said second wave pattern further defining a
second maximum rise and a second minimum rise along said
first direction, wherein said second maximum rise of said rear
body panel is greater than said second minimum rise such that
said second cut edge defines a second amplitude of said second
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wave pattern, and wherein said opposite second side edges are
spaced along said second direction said opposite second side
edges defining a second pitch of said second wave pattern, and
wherein said rear body panel is stretchable in at least said
second direction; and
a crotch member comprising at least one stretchable
component comprising an elastic material connected to said
front and rear body panels and stretchable in at least said
second direction, wherein said first maximum rise of said front
body panel is aligned with and spaced apart from said second
maximum rise of said rear body panel in a non-overlapping
relationship, and wherein said crotch member is aligned with
and overlaps said first and second maximum rises of said front
and rear body panels respectively.

OPINION
The issue raised in this appeal is whether Balogh discloses an
undergarment having a crotch member comprising at least one stretchable
component comprising an elastic material that is stretchable in at least said
second direction (i.e., the lateral direction along which the first and second
side edges of the front and rear body panels are spaced), as called for in each
of independent claims 1, 9, and 18. Br. 5.
Appellants’ Specification defines “the interchangeable terms
‘stretchable’ and ‘elastic’” as referring to a “material that can elongate or
deform (stretch) in response to the application of a tensile force . . . and upon
removal of the tensile force have a length that is less than about 128% of the
original length, which corresponds to hysteresis of less than about 28%.”
Spec. 9:16–21 (emphasis added). By contrast, Appellants’ Specification
defines the term “extensible” as referring to “materials having a length of
greater than about 128% of the original length when elongated and relaxed
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. . ., which corresponds to a hysteresis of greater than about 28%.” Spec.
9:23–26 (emphasis added).
The Examiner reads the claimed “crotch member” on Balogh’s
absorbent composite 50. Ans. 5 (citing Balogh ¶¶ 52, 60, 67, and 73).
Balogh’s absorbent composite 50 comprises topsheet 64 and backsheet 68.
Balogh ¶ 61. Balogh describes the backsheet as being “preferably
extensible, as that term is defined above with respect to the body panels,”
and further discloses a preferred embodiment in which the backsheet is
capable of being elongated and “provides a substantially permanent
deformation of at least about 20% when subjected to a tensile force . . . and
then allowed to relax under a zero applied stress.” Balogh ¶ 73.
Balogh defines the term “extensible,” with respect to the body panels,
as meaning “capable of being extended,” providing “a selected elongation
when subjected to an applied tensile force,” and also preferably being
“capable of providing a selected, sustained [and substantially permanent]
deformation when subjected to an applied tensile force and then allowed to
relax for a selected time period.” Balogh ¶ 60. Balogh further specifies that
the elongation and sustained deformation preferably occur at least in the
lateral direction, but also could occur along the longitudinal direction, or
along both directions. Id.
Thus, Balogh’s absorbent composite 50 comprises a component (the
backsheet) that is capable of elongating when subjected to an applied tensile
force and having a sustained and substantially permanent length of greater
than about 120% of the original length when elongated and relaxed, which
corresponds to a substantially permanent deformation (i.e., hysteresis) of
greater than about 20%. This permanent deformation (i.e., hysteresis) range
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of greater than about 20% disclosed by Balogh overlaps the hysteresis range
of less than about 28% required to satisfy the “stretchable” and “elastic”
limitations of claims 1, 9, and 18, as the terms “stretchable” and “elastic” are
defined in Appellants’ Specification.
Aside from setting a seemingly arbitrary demarcation between a
material that is “stretchable” or “elastic” and one that is “extensible,”
Appellants’ Specification does not appear to attribute any criticality to the
particular range of substantially permanent deformation achievable by the
stretchable component of the crotch member. Further, Balogh does not
indicate, and Appellants do not provide any evidence showing, or even
suggesting, that the claimed undergarment would perform differently at
different points within the range of permanent deformation (greater than
20%) disclosed by Balogh. Moreover, Appellants do not argue that Balogh
fails to teach one of ordinary skill in the art how to practice the claimed
invention using a backsheet material that falls within Appellants’ definition
of “stretchable” or “elastic.”
Thus, on the basis of the record before us, Balogh’s disclosure of
materials with sustained and substantially permanent deformation of greater
than 20% anticipates the “stretchable” and “elastic” limitations of claims 1,
9, and 18. See ClearValue, Inc. v. Pearl River Polymers, Inc., 668 F.3d
1340, 1345 (Fed. Cir. Feb. 2012) (holding that the jury lacked substantial
evidence to find that a prior art range of 150 ppm or less did not anticipate a
claimed value of 50 ppm where there was no evidence that the claimed value
is critical or that the claimed method would work differently at different
points encompassed within the prior art range, and no allegation that the
prior art fails to teach one of ordinary skill in the art how to use the claimed
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invention). Balogh, therefore, supports the Examiner’s finding that crotch
member 50 comprises a stretchable component comprising an elastic
material that is stretchable in at least said second direction (i.e., the lateral
direction along which the first and second side edges of the front and rear
body panels are spaced), as called for in Appellants’ claims. Ans. 5, 11–12.
For the above reasons, Appellants do not apprise us of error in the
Examiner’s rejection of claims 1–11, 13, and 16–20 as anticipated by
Balogh. We sustain the rejection.

DECISION
The Examiner’s decision rejecting claims 1–11, 13, and 16–20 is
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)(1)(iv).
AFFIRMED

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