Ex Parte Winkel et alDownload PDFBoard of Patent Appeals and InterferencesAug 28, 200910953660 (B.P.A.I. Aug. 28, 2009) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte PAULA C. WINKEL, TIMOTHY J. PROBST, KELLIE M. GOODRICH, and JOSEPH P. FELL __________ Appeal 2009-001071 Application 10/953,660 Technology Center 3700 __________ Decided: August 28, 2009 __________ Before TONI R. SCHEINER, DONALD E. ADAMS, and MELANIE L. McCOLLUM, Administrative Patent Judges. McCOLLUM, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to a disposable garment. The Examiner has rejected the claims as anticipated or obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. STATEMENT OF THE CASE “Personal care articles may have fastening tabs located at the rear of the personal care article that extend outwardly and secure to a front portion Appeal 2009-001071 Application 10/953,660 of the article” (Spec. 1: 5-7). “Additionally, personal care articles may have second fastening tabs located at the front of the personal care article that extend outwardly and secure to a rear portion of the article” (id. at 1: 9-11). “To achieve the optimal combination of comfortable fit, absorbency and leakage protection, [the Specification states that] the caregiver is encouraged to don the personal care article on the wearer so that the front and rear waist regions are substantially aligned with each other” (id. at 1: 14- 16). However, the Specification states that the “donning process may be complicated with the addition of multiple fasteners” (id. at 1: 33-34). The Specification discloses a “duel fastening system with placement aids” (id. at 2: 9-10). In particular, the Specification discloses a disposable garment having a “bodyfacing surface compris[ing] indicia in the rear waist region guiding a user fitting the disposable garment regarding the positioning of the second fasteners” (id. at 2: 22-24). Claims 1-26 are pending and on appeal (App. Br. 1). We will focus on claim 1, which reads as follows: 1. A disposable garment having opposed longitudinal side edges, opposed lateral end edges, a front waist region, a rear waist region and a crotch region which extends between and connects the front waist region and the rear waist region, the disposable garment comprising: a bodyfacing surface; a garment facing surface; and a dual fastening system, the dual fastening system comprising: at least two first fasteners located on first fastener tabs, at least a portion of each first fastener being situated inboard from each longitudinal side edge of the rear waist region, each first fastener being configured to engage at least a portion of the garment facing surface; and at least two second fasteners located on second fastener tabs, at least a portion of each second fastener being located in the front waist 2 Appeal 2009-001071 Application 10/953,660 region and situated inboard from each longitudinal side edge of the front waist region, each second fastener being configured to engage at least a portion of the bodyfacing surface; wherein the bodyfacing surface comprises indicia in the rear waist region guiding a user fitting the disposable garment regarding the positioning of the second fasteners. Claims 1-5, 9-18, and 22-26 stand rejected under 35 U.S.C. § 102(b) as anticipated by Weber (US 6,352,528 B1, Mar. 5, 2002) (Ans. 3). Claims 6 and 19 stand rejected under 35 U.S.C. § 103(a) as obvious over Weber in view of Goerg (US 5,776,123, Jul. 7, 1998) (Ans. 4). Claims 7 and 20 stand rejected under 35 U.S.C. § 103(a) as obvious over Weber in view of Kido (US 5,897,546, Apr. 27, 1999) (Ans. 5). Claims 8 and 21 stand rejected under 35 U.S.C. § 103(a) as obvious over Weber in view of Pozniak (US 6,045,543, Apr. 4, 2000) (Ans. 6). The Examiner relies on Weber for teaching all of the features of claim 1 (Ans. 3-4). In particular, the Examiner finds that “[t]raining pant 20 has fastening system 80 that includes first and second fastening components 82,83 comprised of hook material that are adapted to refastenably connect to first and second mating fastening components 84,85” (id. at 3). The Examiner also finds: Fastening components 82,83 are located on outer cover 40 inboard of the side edges 36 of rear waist region 24 and mating components 84,85 are located on outer cover 40 inboard of side edges 36 of front waist region 22 such that when the components engage, fastening components 82,83 engage at least a portion of the garment facing surface of pant 20 and mating components 84,85 engage at least a portion of the body- facing surface of pant 20. (Id.) 3 Appeal 2009-001071 Application 10/953,660 The Examiner relies on Goerg, Kido, and Pozniak for features of dependent claims and does not rely on any of these references for disclosing the duel fastening system of claim 1 (id. at 4-6). Appellants contend that Weber does not disclose the duel fastening system of claim 1 (App. Br. 4). ISSUE Did the Examiner err in concluding that Weber discloses the duel fastening system of claim 1? FINDINGS OF FACT 1. Weber discloses a disposable absorbent article “in the form of a refastenable pant with hidden graphics . . . [that] become visible only when the fasteners are disengaged from one another” (Weber, col. 1, ll. 50-59). 2. Weber Figure 1 is reproduced below: 4 Appeal 2009-001071 Application 10/953,660 Weber Figure 1 depicts a disposable absorbent article, specifically training pant 20, “where the fastening system is shown engaged on one side of the absorbent article and disengaged on the other side of the absorbent article” (id. at col. 9, ll. 44-49, & col. 10, ll. 35-36). 3. Weber discloses that training pant 20 “includes a fastening system 80 for securing the training pant about the waist of the wearer,” the fastening system including “a pair of fastening components designated first and second fastening components 82 and 83 that are adapted to refastenably connect to a pair of mating fastening components designated first and second mating fastening components 84 and 85” (id. at col. 15, ll. 58-65). 4. Weber also discloses: [T]he first fastening component 82 and the first mating fastening component 84 are on the wearer’s left-hand side of the training pant 20 and are designed to releasably engage one another, and the second fastening component 83 and the second mating fastening component 85 are on the wearer’s righthand side of the training pant and are designed to releasably engage one another. (Id. at col. 15, l. 66, to col. 16, l. 5.) PRINCIPLES OF LAW “A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of California, 814 F.2d 628, 631 (Fed. Cir. 1987). ANALYSIS Weber discloses a fastening system comprising at least two fastening components 82 and 83 (Findings of Fact (FF) 2-3). Weber also discloses at 5 Appeal 2009-001071 Application 10/953,660 least two mating fastening components 84 and 85 (id.). The Examiner considers fastening components 82 and 83 and mating fastening components 84 and 85 to be the first and second fasteners of claim 1, respectively (Ans. 3). We do not agree. The Examiner has not shown that Weber’s fastening components 82 and 83 are configured to engage at least a portion of the garment facing surface, as required by claim 1. Instead, these components are configured to engage the mating fastening components 84 and 85 (FF 4), which the Examiner considers to be the second fasteners (Ans. 3). Given that the second fasteners and the garment facing surface are separate elements in claim 1, it is improper for the Examiner to consider Weber’s mating fastening components 84 and 85 to be both the second fasteners and part of the garment facing surface. Similarly, even if we consider Weber’s mating fastening components 84 and 85 to be second fasteners, the Examiner has not shown that these components are configured to engage at least a portion of the bodyfacing surface, as required by claim 1. Instead, these components are configured to engage the fastening components 82 and 83 (FF 4), which the Examiner considers to be the first fasteners (Ans. 3). Given that the first fasteners and the bodyfacing surface are separate elements in claim 1, it is improper for the Examiner to consider Weber’s fastening components 82 and 83 to be both the first fasteners and part of the bodyfacing surface. CONCLUSION The Examiner erred in concluding that Weber discloses the duel fastening system of claim 1. We therefore reverse the anticipation rejection 6 Appeal 2009-001071 Application 10/953,660 of claim 1 and of claims 2-5, 9-18, and 22-26, which recite or depend from a claim that recites the duel fastening system of claim 1. Based on this error, we also reverse the obviousness rejections of dependent claims 6-8 and 19- 21 over Weber in view of Goerg, Kido, or Pozniak. REVERSED cdc KIMBERLY-CLARK WORLDWIDE, INC. Catherine E. Wolf 401 NORTH LAKE STREET NEENAH WI 54956 7 Copy with citationCopy as parenthetical citation