Ex Parte Winkel et al

Board of Patent Appeals and Interferences

Aug 28, 2009

10953660 (B.P.A.I. Aug. 28, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte PAULA C. WINKEL, TIMOTHY J. PROBST,
KELLIE M. GOODRICH, and JOSEPH P. FELL
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Appeal 2009-001071
Application 10/953,660
Technology Center 3700
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Decided: August 28, 2009
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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
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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
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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.)
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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:

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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
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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
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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

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