Ex Parte Wyngaard

Board of Patent Appeals and Interferences

Jul 31, 2009

10729485 (B.P.A.I. Jul. 31, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CYNTHIA L. WYNGAARD
____________

Appeal 2008-001266
Application 10/729,485
Technology Center 3700
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Decided:1 July 31, 2009
____________

Before: WILLIAM F. PATE, III, JENNIFER D. BAHR, and LINDA E.
HORNER, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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STATEMENT OF THE CASE
Cynthia L. Wyngaard (Appellant) appeals under 35 U.S.C. § 134
(2002) from the Examiner’s decision rejecting claims 1-33. We have
jurisdiction over this appeal under 35 U.S.C. § 6 (2002).

The Invention
Appellant’s claimed invention is directed to an absorbent article
intended for personal wear. Spec. 1, para. [0001].
Claim 1, reproduced below, is exemplary of Appellant’s claimed
subject matter.
1. An absorbent article defining a front waist
region, a back waist region, a crotch region that
extends between and connects said front and back
waist regions, a longitudinal direction and a lateral
direction, an inner surface, an outer surface
opposite said inner surface, and a pair of
longitudinally opposed end margins and a pair of
laterally opposed side margins, said article
comprising:
A stretchable outercover;
A stretchable bodyside liner joined to the
stretchable outercover in a superposed relation
wherein said outercover and said bodyside liner
are joined along at least a portion of each of said
end margins to provide a front waist seam and a
back waist seam and wherein said outercover and
said bodyside liner are joined along at least a
portion of each of said side margins in said front
waist region and said back waist region to provide
a pair of side seams in each of said front waist
region and said back waist region;
An absorbent body disposed between said
outercover and said bodyside liner, said absorbent
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body defining a pair of longitudinally opposed
absorbent end edges and a pair of laterally opposed
absorbent side edges;
A first elastomeric suspension member
disposed only in said front waist region and
attached to said absorbent body in said front waist
region; and
A second elastomeric suspension member
attached to said absorbent body in said back waist
region;
Wherein said first elastomeric suspension
member is sandwiched between said outercover
and said bodyside liner in said pair of side seams
in said front waist region, and wherein said second
elastomeric suspension member is sandwiched
between said outercover and said bodyside liner in
said pair of side seams in said back waist region.

The Rejections
The Examiner has rejected claims 1-33 as follows:
(1) claims 1-5, 8, 11, 16-19, and 26-28 under 35 U.S.C. § 102(b) as being
anticipated by, or, in the alternative, under 35 U.S.C. § 103(a) as
being unpatentable over Jitoe (US 2002/0151862 A1, published Oct.
17, 2002);
(2) claims 6, 7, 13, 15, 20, 23, 25, 29, 31, and 33 under 35 U.S.C.
§ 103(a) as being unpatentable over Jitoe2; and
(3) claims 9, 10, 12, 14, 21, 22, 24, 30, and 32 under 35 U.S.C. § 103(a)
as being unpatentable over Jitoe and Osborn (US 5,713,884, issued
Feb. 3, 1998).

2 The alternative rejection of these claims as being anticipated by Jitoe (Final
Rejection 7) has been withdrawn.
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SUMMARY OF DECISION
We AFFIRM.

ISSUE
In rejecting the claims, the Examiner found that the absorbent body
and elastomeric suspension members of claim 1 read on the absorbent core 4
and elastic members 21, respectively, of Jitoe. Ans. 4. According to the
Examiner, Jitoe’s disclosed arrangement of elastic members 21 being
directly pressed against the absorbent core 4 during use “may be reasonably
interpreted as an attachment of the suspension members to the absorbent
core.” Ans. 9. In the alternative, the Examiner points out that the absorbent
core 4 may be bonded to the backsheet 3, which in turn may be bonded to
the elastic members 21 via bonds 13 and 25, thus providing an indirect
attachment of the elastic members 21 to the absorbent core 4 via the
backsheet 3.3 Id.
In contesting the rejections of all of the claims involved in this appeal,
Appellant relies on a single argument, namely, that Jitoe does not disclose a
first elastomeric suspension member that is “attached to said absorbent body
in said front waist region” or a second elastomeric suspension member
“attached to said absorbent body in said back waist region.” App. Br. 4 and
6-7. Appellant does not allege any other error in the Examiner’s rejections.
Appellant specifically directs her argument in the Appeal Brief to claim 1
(App. Br. 4-6), and further submits simply that the rejections of claims 2-17
should be reversed because of the dependence of these claims from claim 1
(App. Br. 6). With respect to the other two independent claims 18 and 26,

3 We focus on this alternative position in our opinion.
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and their dependent claims, Appellant simply contends that “[f]or at least the
reasons described above with respect to claim 1,” the rejections of claims
18-33 also should be reversed. App. Br. 6-7. Therefore, we focus our
attention on claim 1.
Specifically, Appellant argues that the terms “attach” and “join” as
used in the present application require more than simply positioning two
items adjacent or near one another, as the Examiner’s rejection implies.
App. Br. 5. Appellant further points out Jitoe’s teaching that the portions of
the elastic members 21 extending across the absorbent core 4 are joined
neither to the backsheet 3 nor to the absorbent core 4. App Br. 5; see Jitoe,
paras. [0010], [0030], [0034], and [0041]. Appellant relies on this teaching
to support the position that Jitoe’s elastic members 21 are not “attached” to
the absorbent core 4, as called for in claim 1.4
Accordingly, the sole issue raised in this appeal is:
Has Appellant demonstrated that the Examiner erred in finding that
Jitoe’s elastic members 21 are “attached” or “joined” to absorbent
core 4?

FACTS PERTINENT TO THE ISSUE

4 While the language of independent claims 18 and 26 differs somewhat
from that of claim 1, claims 18 and 26 contain essentially the same
limitation. Claim 18 calls for the absorbent body to be “joined to said first
elastomeric suspension member and said second elastomeric suspension
member,” and claim 26 requires at least one elastomeric suspension member
“attached to each of said absorbent side edges [of said absorbent body] in
said front waist region” and at least one elastomeric suspension member
“attached to each of said absorbent side edges [of said absorbent body] in
said rear waist region.”
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1. Appellant’s Specification sets forth the following definition:
As used herein, “attach,” and its variations, such as
“attached,” and “attachment,” and “join” and its
variations, such as “joined” or “joinder” may
indicate a direct connection of multiple elements,
an indirect connection of multiple elements (such
as via at least one intermediate element), or an
integral association of elements.
Spec. 22, para. [0060].
2. Therefore, Appellant’s Specification explicitly defines
“attached” and “joined" so as to encompass both direct
and indirect connection of multiple elements, such as via
at least one intermediate element.
3. Jitoe teaches that elastic members 21 may be secured to
backsheet 3 by means of adhesive 25. Para. [0030].
4. Jitoe teaches that absorbent core 4 may be bonded to
backsheet 3 in any region other than the crotch region 8.
Para. [0040].
5. On the basis of Facts 3 and 4, the Examiner correctly
found that the elastic members 21 are indirectly attached
to absorbent core 4 via the backsheet 3. Ans. 9.
6. The attachment by means of adhesive 25 or adhesive 13
of the elastic members 21 to absorbent core 4 via
backsheet 3 is in the front and rear waist regions 6 and 7.
Figs. 1 and 2, para. [0027].
7. Jitoe teaches that the elastic members 21 are attached to
neither the backsheet 3 nor the absorbent core 4 “in the
area defined between the transversely opposite side edges
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23, 23 of the absorbent core 4” so as to avoid wrinkling
of the backsheet 3 and absorbent core 4 upon contraction
of the elastic members 21. Paras. [0030] and [0034].
Jitoe does not teach that the elastic members 21 are not
attached to the backsheet 3 or absorbent core 4 via a
connection outside of the absorbent core 4.

PRINCIPLES OF LAW
It is well settled that the United States Patent and Trademark Office
(PTO) is obligated to give claim terms their broadest reasonable
interpretation, taking into account any enlightenment by way of definitions
or otherwise found in the specification. In re ICON Health and Fitness, Inc.,
496 F.3d 1374, 1379 (Fed. Cir. 2007).

ANALYSIS
Consistent with the definition explicitly set forth in Appellant’s
Specification (Facts 1 and 2), we construe the term “attached” in claim 1 as
including either a direct connection of multiple elements or an indirect
connection of multiple elements, such as via at least one intermediate
element.5
The elastic members 21 are indirectly attached by means of adhesive
to absorbent core 4 via the backsheet 3 in the front and rear waist regions 6
and 7. See Facts 3-6. Jitoe’s elastic members 21 thus satisfy the claim

5 While we focus on claim 1 in this opinion, the term “joined” used in claim
18 is subject to the same construction, in light of the explicit definition in
Appellant’s Specification (Fact 1).
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limitations at issue, namely, a first elastomeric suspension member “attached
to said absorbent body in said front waist region” and a second elastomeric
suspension member “attached to said absorbent body in said back waist
region.”
We fully appreciate Jitoe’s teaching that the members 21 extending
across the absorbent core should not be attached to the absorbent core 4
between the opposite side edges 23, 23 of absorbent core 4, so as to avoid
wrinkling. See Fact 7. This in no way detracts from or nullifies Jitoe’s
teaching of an indirect connection of the elastic members 21 to absorbent
core 4 via backsheet 3 (an intermediate element).

CONCLUSIONS
Appellant has not demonstrated that the Examiner erred in finding that
Jitoe’s elastic members 21 are “attached” or “joined” to absorbent core 4.
Therefore, Appellant has not demonstrated error in the Examiner’s rejections
of claims 1-33.

DECISION
The Examiner’s decision 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) (2007).
AFFIRMED

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Application 10/729,485

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