Ex Parte Yang

Patent Trial and Appeal Board

Dec 29, 2017

13236784 (P.T.A.B. Dec. 29, 2017)

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.
13/236,784 09/20/2011 Morris Yang PPC5365USNP 7486
27777 7590 01/03/2018
JOSEPH F. SHIRTZ
JOHNSON & JOHNSON
ONE JOHNSON & JOHNSON PLAZA
NEW BRUNSWICK, NJ 08933-7003
EXAMINER
PHILIPS, BRADLEY H
ART UNIT PAPER NUMBER
3778
NOTIFICATION DATE DELIVERY MODE
01/03/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
j nju spatent @ corn s .j nj. com
lhowd@its.jnj.com
pair_jnj @ firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MORRIS YANG
Appeal 2017-000899
Application 13/236,784
Technology Center 3700
Before LYNNE H. BROWNE, JEFFREY A. STEPHENS, and
GORDON D. KINDER, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) from the
Examiner’s Final Office Action (“Final Act.”) rejecting claims 1, 3—7, 10—
12, 14—16, and 20—22.2 We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 The real party in interest is identified as McNeil-PPC, Inc., which is
identified as a subsidiary of Johnson & Johnson. Br. 2.
2 Claims 2 and 13 are cancelled, and claims 8, 9, and 17—19 are withdrawn
from consideration. Br. 9, 11; Final Act. 1.
Appeal 2017-000899
Application 13/236,784
Claimed Subject Matter
Claim 1, the sole independent claim on appeal, is reproduced below
and illustrates the claimed subject matter.
1. An absorbent article comprising:
a liquid permeable cover layer;
a liquid impermeable barrier layer; and
an absorbent composite material arranged between the
cover layer and the barrier layer; wherein the absorbent
composite material comprises:
a) a fibrous material having a density lower than
0.05 g/cc, the fibrous material including a plurality of
individual fibers forming a fiber matrix and a latex binder
material present in an amount from about 40% by to about
60% by weight of the fibrous material, the fibrous material
having first and second opposed surfaces,
b) superabsorbent polymer dispersed within the
fiber matrix, and
c) an absorbent mixture covering the first surface of
the fibrous material, the absorbent mixture comprising
between about 90% and about 98% superabsorbent
polymer by weight and between about 10% and about 2%
adhesive by weight, wherein the adhesive in the absorbent
mixture is a hot melt adhesive.
Rejection3
I. Claims 1, 3—7, 10-12, 14—16, and 20—22 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Toro (US 7,462,755 B2, issued Dec.
9, 2008), Ouedemi (US 2003/0003830 Al, published Jan. 2, 2003), and
Chakravarty (US 2005/0148258 Al, published July 7, 2005). Final Act. 3—
11.
3 The Examiner withdraws the rejection under 35 U.S.C. § 112, second
paragraph, in the Answer. Ans. 2.
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Appeal 2017-000899
Application 13/236,784
DISCUSSION
The dispositive issue on appeal is whether Toro teaches “an absorbent
mixture covering the first surface of the fibrous material,” as recited in claim
1. Appellant argues Toro’s edge barrier elements 20 are not “covering” the
first surface of the fibrous material because they do not fully span the
surface and are only narrow stripes running along the edge of the absorbent
structure. Br. 5. Appellant cites a dictionary defining “cover” to mean “to
place something on or over, so as to protect or conceal,” and argues “cover”
requires much more than “partial overlying.” Id. We note that Appellant’s
argument implicitly interprets the claimed “first surface” to mean the entire
face of the fibrous material on the side that is adjacent the absorbent
mixture.
The Examiner does not dispute Appellant’s interpretation of the “first
surface,” but determines that the claim term “covering” does not require
“fully spanning.” Ans. 4. The Examiner finds Toro’s absorbent mixture
“extends over or overlays the first surface, thus covering the first surface” in
a manner consistent with Appellant’s cited dictionary definition. Id. The
Examiner also finds “Toro explicitly discloses that the absorbent mixture
covers the first surface.” Id. (citing Toro col. 14,11. 8—14).
Appellant’s Specification does not use the term “cover” to describe
the relation between the absorbent mixture and the first surface of the
fibrous material. In our view, however, the ordinary meaning of “to cover”
is not broad enough to encompass only partially overlaying a surface. We
determine that, without a qualifier such as “partially,” one of ordinary skill
in the art would understand “covering” a surface to mean the entire surface
is covered. Although the dictionary definition offered by Appellant is not
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Appeal 2017-000899
Application 13/236,784
explicit as to this point, it is consistent with this understanding because an
object will not generally protect or conceal another object unless it entirely
covers it. Our interpretation is also consistent with Toro’s use of the terms
“to cover” and “covered” because Toro refers to covering a specific area
(e.g., 60 cm2 or 35% of a total area) of a surface, and does not indicate that
the surface itself is “covered” if only a portion of it is covered. Toro col. 14,
11. 8—17. The Specification’s use of the term “cover layer 82” (see, e.g.,
Spec. 17:8) and description of a positioning adhesive that is “covered” with
removable release paper (Spec. 20:19—21) are not dispositive, but are also
consistent with our understanding of the term “cover.”
Under our interpretation of “covering,” and accepting the Examiner’s
and Appellant’s interpretation of the “first surface” as the entire face of the
fibrous material on the side that is adjacent the absorbent mixture, we agree
with Appellant that Toro does not teach covering the first surface of the
fibrous material with the absorbent mixture. As noted by Appellant, Toro’s
edge barrier elements, which the Examiner considers to be the claimed
absorbent mixture, do not cover more than 35% of the total area of the
respective surface of the core. Toro col. 14,11. 12—17; Br. 5. Because Toro
does not teach the “covering” limitation under our interpretation of the term,
we do not sustain the rejection of claim 1 under 35 U.S.C. § 103(a) as
unpatentable over Toro, Ouedemi, and Chakravarty. For the same reasons,
we do not sustain the rejections of dependent claims 3—7, 10-12, 14—16, and
20-22, which are rejected on the same ground.
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Appeal 2017-000899
Application 13/236,784
Our decision is based on the rejection before us, and does not preclude
further examination of the claims consistent with our interpretation of the
claim terms discussed herein.4
DECISION
We reverse the Examiner’s rejection of claims 1, 3—7, 10—12, 14—16,
and 20—22.
REVERSED
4 Although the Board is authorized to enter a new ground of rejection under
37 C.F.R. § 41.50(b), no inference should be drawn when the Board elects
not to do so. See Manual of Patent Examining Procedure (MPEP)
§ 1213.02.
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