10721829 (B.P.A.I. Sep. 14, 2011)

Ex Parte Venturino et al

Board of Patent Appeals and InterferencesSep 14, 2011

10721829 (B.P.A.I. Sep. 14, 2011)

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. 10/721,829 11/24/2003 Michael Barth Venturino KCX-669 (19587) 4748 22827 7590 09/14/2011 DORITY & MANNING, P.A. POST OFFICE BOX 1449 GREENVILLE, SC 29602-1449 EXAMINER HAND, MELANIE JO ART UNIT PAPER NUMBER 3761 MAIL DATE DELIVERY MODE 09/14/2011 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte MICHAEL BARTH VENTURINO and ROBERT EUGENE VOGT ____________________ Appeal 2010-001781 Application 10/721,829 Technology Center 3700 ____________________ Before: JENNIFER D. BAHR, GAY ANN SPAHN, and CHARLES N. GREENHUT, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-001781 Application 10/721,829 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1, 3-6, 12-16, and 21-331. Appellants cancelled claims 2, 7-11, 26, and 34-82. The Examiner withdrew claims 17-20 from consideration. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. The claims are directed to a folded absorbent product. Claim 1, reproduced below, with emphasis added, is illustrative of the claimed subject matter: 1. An absorbent article comprising: an outer cover material; a liner; and an absorbent structure positioned between the outer cover material and the liner, the absorbent structure including a front portion, a rear portion, and a middle portion, the middle portion positioned between the front portion and the rear portion, the middle portion being narrower than the front portion, the front portion extending from a front edge of the absorbent structure to the narrower middle portion, the front portion defining an outermost lateral periphery, the front portion having a width, the absorbent structure further comprising a pair of opposing lateral flaps connected to the middle portion and folded at least onto the middle portion of the absorbent structure, each of the flaps, when in an unfolded state, extending beyond the outermost lateral periphery, the middle portion having a basis weight where the lateral flaps have been folded that is at least twice the basis weight of the front portion where the flaps are not located, each of the flaps having a width adjacent to the middle portion that is from 1 The Examiner indicates the appeal involves claims 1, 3-6, 12-16, and 21- 33. Ans. 2. However, concurrently with the Appeal Brief, Appellants filed an Amendment canceling claim 26. Amendment of Sept. 29, 2008. There is no indication in the record that the Examiner entered and considered this amendment. Appellants do not argue claim 26 on appeal. Correction should be made in any further prosecution. Appeal 2010-001781 Application 10/721,829 3 about 25% to 100% of the width of the middle portion, wherein the absorbent structure defines a length and wherein the pair of opposing lateral flaps extend only a portion of the length of the absorbent structure adjacent to the middle portion. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Mesek US 4,670,011 Jun. 2, 1987 REJECTIONS Claims 1, 3-6, 12-16, 21-23 and 26-33 are rejected under 35 U.S.C. 102(b) as being anticipated by Mesek. Ans. 3. Claims 24 and 25 are rejected under 35 U.S.C. 102(b) as anticipated by or, in the alternative, under 35 U.S.C. 103(a) as obvious over Mesek. Ans. 9. OPINION Appellants argue, and we agree, that Mesek does not disclose that “each of the flaps, when in an unfolded state, extend[s] beyond the outermost lateral periphery [defined by the front portion]” as is claimed in claim 1, the sole independent claim involved in this appeal. App. Br. 6. The side flaps 26, 126 in Mesek are cut from a rectangular batt 14, 114, so that the flaps, when extended, would not extend past the edge of the rectangle. Col. 4, ll. 44-45, col. 7, ll. 33-37, col. 10, ll. 58-61, and figs. 2, 6. To meet the “extending beyond . . .” limitation, the Examiner interprets the “front portion” as “anywhere between the start of the narrower middle portion and the front end of batt 114.” Ans. 4, 11. However, under the Examiner’s interpretation the front portion would not “extend[] from a front edge of the Appeal 2010-001781 Application 10/721,829 4 absorbent structure” nor “defin[e] an outermost lateral periphery” as required by claim 1. See Reply Br. 5-6. The “front portion” is, in fact, more narrowly defined than the Examiner suggests. See id.; Contra Ans. 11. Since this erroneous interpretation forms the basis for the rejections of all claims involved in this appeal, we are constrained to reverse the Examiner’s rejections. DECISION For the above reasons, the Examiner’s rejection of claims 1, 3-6, 12- 16, and 21-33 are reversed. REVERSED nlk