Ex Parte Veith

Board of Patent Appeals and Interferences

May 19, 2010

10693555 (B.P.A.I. May. 19, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JEROME S. VEITH
____________

Appeal 2009-006118
Application 10/693,555
Technology Center 3700
____________

Decided: May 19, 2010
____________

Before: LINDA E. HORNER, JENNIFER D. BAHR, and STEVEN D. A.
MCCARTHY, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-006118
Application 10/693,555

2
STATEMENT OF THE CASE
Jerome S. Veith (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner’s decision rejecting claims 1-23, which are all of the claims
on appeal. We have jurisdiction under 35 U.S.C. § 6(b). We reverse.
Appellant’s claimed invention is a disposable undergarment for a
male user. Spec. 1:5. Claim 1, reproduced below, is representative of the
subject matter on appeal.
1. A disposable absorbent garment comprising:
a body chassis having a terminal front waist edge, a
terminal back waist edge longitudinally spaced from said
terminal front waist edge, a first length defined between said
terminal front waist edge and said terminal back waist edge,
and a laterally extending centerline defined half way between
said terminal front and back waist edges, wherein said body
chassis is formed from a laminate structure having a plurality of
layers, wherein all of said layers have the same length such that
a thickness of said body chassis is the same along said length of
said layers; and
an absorbent insert fixedly secured to said body chassis,
said absorbent insert comprising a retention region comprising
an absorbent material, said retention region having first and
second longitudinally spaced boundaries and a second length
defined between said first and second boundaries, wherein said
second length is less than or equal to 50% of said first length,
wherein at least 70% of said second length is positioned
between said centerline and said terminal front waist edge, and
wherein there is no absorbent material disposed longitudinally
outside of said retention region defined between said first and
second boundaries.

Appeal 2009-006118
Application 10/693,555

3
Appellant seeks review of the Examiner’s rejection of claims 1-23
under 35 U.S.C. § 103(a) as unpatentable over Van Gompel (US 6,217,563
B1) and Everett (US 6,437,214 B1).
The Examiner found Van Gompel discloses all aspects of the
invention of claims 1-23 except the claimed size and position limitations of
the retention region. Ans. 3-5. The Examiner relied on Everett to teach a
target area 52, sized and positioned where the majority of an insult of
exudates will occur. Id. The Examiner concluded that it would have been
obvious to modify the article of Van Gompel by sizing and positioning the
retention area as taught by Everett in order to place the retention area where
the majority of the flow of exudates from an insult will occur. Id. The
Examiner also reasoned that modification of Van Gompel’s retention region
to meet the claimed size and position limitations was a matter of
optimization, with Everett’s target area 52 providing evidence of optimal
placement of the retention region. Ans. 17-18.
Appellant argues Everett does not disclose a retention region sized
and positioned as called for in independent claims 1, 6, 17, and 20, or a
retention region positioned as called for in independent claim 11. App. Br.
9-14; Reply Br. 1-4.
The issues before us are:
Does the combination of Van Gompel and Everett teach a disposable
absorbent garment having a retention area sized and positioned as called for
in independent claims 1, 6, 17, and 20?
Does the combination of Van Gompel and Everett teach a disposal
absorbent garment having a retention area positioned as called for in
independent claim 11?
Appeal 2009-006118
Application 10/693,555

4
Independent claims 1, 6, 17, and 20 call for the retention region to be
less than or equal to 50 percent of the distance from the terminal front waist
edge to the terminal back waist edge of the garment. Independent claims 1,
6, 11, 17, and 20 call for at least 70 percent of the length of the retention
region to be positioned between the centerline (halfway between the waist
edges) and the terminal front waist edge. The Examiner found that Van
Gompel does not disclose the claimed size and position of the retention
region. Ans. 3-5.
The first rationale articulated by the Examiner is that it would have
been obvious to size and position the retention area of Van Gompel, based
on Everett’s target area, in order to place the retention area where the
majority of the flow of exudates from an insult will occur. Ans. 3-5. This
rationale is premised on a finding that Everett discloses a retention area
sized and positioned where the majority of the flow of exudates from an
insult will occur. Id. As Appellant correctly points out, such a reading of
Everett is not based upon what the disclosure as a whole would teach a
person of ordinary skill in the art. App. Br. 12; Reply Br. 2.
Everett discloses an absorbent composite system 26, such as a diaper
20, having a composite layered structure (absorbent core 30) including two
or more absorbent layer regions. Everett, col. 1, ll. 7-12, 61-63; col. 7, ll.
35-37; col. 10, ll. 7-8; fig. 1. The first layer region 48 is positioned on the
body side of absorbent core 30 in substantially direct contact with the
incoming liquid, and serves as an intake layer. Everett, col. 2, 16-24; col. 5,
ll. 29-32; figs. 1, 1A, 1B. Everett discloses that first layer region 48 can be
positioned to cover the area where liquids such as urine are introduced into
the absorbent structure (target area 52). Everett, col. 19, ll. 45-49; fig. 2.
Appeal 2009-006118
Application 10/693,555

5
First layer region 48 has composite properties furnishing void volume and
high permeability to provide optimum intake performance by staying at low
saturation through as many insults of the product as possible for rapid uptake
of liquid until it can be absorbed by the second layer region. Everett, col. 2,
ll. 4-5, 16-24; col. 19, ll. 38-45. Second layer region 50, a high saturation
wicking layer region, is positioned on the outward side of absorbent core 30.
Everett, col. 2, ll. 20-21; col. 17, ll. 61-65; figs. 1A, 1B.
Everett discloses that first and second layer regions 48, 50
cooperatively interact by wicking or other mechanisms to concentrate liquid
in the second layer region 50, increasing the potential of second layer 50 to
move and distribute liquid through capillary action due to the relatively
higher saturation level and amount of liquid available. Everett, col. 4, ll. 45-
53; col. 4, l. 65 - col. 5, l. 6. The first and second layer configuration more
fully utilizes that potential absorbent capacity of the adsorbent structure,
more efficiently moves and distributes acquired liquid to remote areas,
acquires and intakes liquid at a rapid rate, and maintains the desired intake
rate. Everett, col. 2, ll. 57-67.
Contrary to the Examiner’s finding, Everett’s target area 52 is not a
retention area sized and positioned where the majority of the flow of
exudates from an insult will occur. Rather, a person of ordinary skill in the
art would recognize that Everett’s target area 52 is an intake area that
functions in cooperation with a second absorbent layer. The Examiner has
not pointed to, nor are we able to find, any disclosure in Everett suggesting
that the absorbent portion may be limited to the intake area, with no
absorbent material disposed longitudinally outside of a retention region
defined between first and second boundaries.
Appeal 2009-006118
Application 10/693,555

6
The second rationale articulated by the Examiner is that modification
of Van Gompel to meet the claimed size and position limitations was a
matter of optimization, with Everett’s target area 52 providing evidence of
optimal placement of the retention region. Ans. 17-18. As explained in our
analysis of the first rationale, supra, Everett does not disclose evidence of
any factors which one of ordinary skill in the art might have sought to
optimize when deciding the placement of a retention region, but rather
discloses evidence of an intake layer that may be used in conjunction with
another, less localized absorbent layer.
The combination of Van Gompel and Everett does not teach a
disposal absorbent garment having a retention area sized and positioned as
called for in independent claims 1, 6, 17, and 20. The rejection of claims 2-
5, 7-10, 18, 19, and 21-23 is also in error by virtue of their dependence from
claims 1, 6, 17, and 20.
The combination of Van Gompel and Everett does not teach a
disposable absorbent garment having a retention area positioned as called for
in claim 11. The rejection of claims 12-16 is also in error by virtue of their
dependence from claim 11.
We REVERSE the Examiner’s decision to reject claims 1-23.

REVERSED

nhl

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