Ex Parte Zander et al

Board of Patent Appeals and Interferences

Mar 25, 2009

11020724 (B.P.A.I. Mar. 25, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte TERESA MARIE ZANDER, KRISTI JO BRYANT,
KATHERINE CAROL WHEELER and HERB FLORES VELAZQUEZ
__________

Appeal 2009-1231
Application 11/020,724
Technology Center 3700
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Decided:1 March 26, 2009
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Before ERIC GRIMES, RICHARD M. LEBOVITZ, and
STEPHEN WALSH, Administrative Patent Judges.

WALSH, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a package
for absorbent personal care articles. The Patent Examiner rejected the

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).

Appeal 2009-1231
Application 11/020,724

claims as anticipated or in the alternative as obvious. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.

STATEMENT OF THE CASE
The invention is a package for holding and dispensing absorbent
personal care articles. “The package of the present invention has a book-like
structure, with the pages of the book being the packaging component [] with
the absorbent article [] contained therein.” (Spec. 10.)
Claims 1-6, 8, 9, 11-16, and 18-23, which are all the pending claims,
are on appeal. (App. Br. 1). The Examiner rejected all the claims under
35 U.S.C. §102(b) as anticipated by or, in the alternative, under 35 U.S.C.
§ 103(a) as obvious over Deckers.2
Appellants argue claims 1 and 9 separately, and group the claims as
follows:
Claims 1-6, 8, 11, 16, 18, 20, and 22
Claims 9, 19, 21, and 23.
Claims 1 and 9 are representative of the argued groups. 37 C.F.R.
§ 41.37(c)(1)(vii). Claims 1 and 9 read:
1. A package for holding and dispensing absorbent personal care articles
comprising:
a plurality of absorbent personal care articles;
a plurality of packaging components which are removable from
the package;
each packaging component comprising a compartment, a fixed
end and a free end, wherein each fixed end is connected directly
or indirectly to at least one other fixed end of another packaging
component and each free end of a given packaging component

2 U.S. Patent No. 2,815,126, issued to José Deckers, Dec. 3, 1957.
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Application 11/020,724

is opposed to the fixed end, each packaging component having
at least one absorbent personal care article placed within each
compartment.

9. A package for holding and dispensing absorbent personal care articles
comprising:
a plurality of absorbent personal care articles;
a plurality of packaging components,
each packaging component comprising a compartment, a fixed
end and a free end, each fixed end is connected directly or
indirectly to at least one other fixed end of another packaging
component and each free end of a given packaging component
is opposed to the fixed end of a given packaging component,
each packaging component having at least one absorbent
personal care article placed within each compartment,
wherein the absorbent article is dispensed from an individual
packaging component
as a portion of the packaging component is removed from
the package or
as the individual free end of the packaging component is
subjected to a tension force.

ANTICIPATION
The Anticipation Issues
The Examiner’s position is that Deckers’ package for bandages had all
the claimed features, including a “means to remove at least a portion of the
packaging component.” (Ans. 4.) Deckers taught a package made of
thermo-plastic material and the Examiner found it “well known that the
thermo-plastic material from which the components are formed may be cut
or torn (i.e. capable of being removed) from the packaging.” (Ans. 6.)
According to the Examiner, “the teaching of fastened and/or subdivided
thermoplastic material reinforces the position of such material being
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Application 11/020,724

removable, or capable of, and intended to, being [removable],” meeting the
limitation of “removable” as recited in claim 1. (Ans. 7.)
Regarding claim 9, the Examiner found that Deckers’ “packaging
component is removable from or dispensed from the package by subjecting
the free end of the packaging component to a tension force.” (Ans. 5.)
Deckers provided a temporary seal that, when removed, allowed the product
to be given out or dispensed. (Ans. 7.)
Appellants contend that Deckers did not teach “that the packaging
component is removable from the package.” (App. Br. 3.) Appellants also
argue that while Deckers’ device may have allowed user access to a bandage
in a pocket, it did not meet claim 9’s requirement that the article “is
dispensed” as a portion of the packaging component is removed or as the
free end of the packaging component is subjected to a tension force. (App.
Br. 6.)
The issues with respect to this rejection are
• whether Deckers described a package having “a plurality of packaging
components which are removable from the package;” and
• whether a bandage was “dispensed” from Decker’s device either as a
portion of the packaging component is removed or as the free end of
the packaging component is subjected to a tension force.

Findings of Fact
1. Deckers described a package “particularly suitable for the proper
conservation and preservation of bandages and similar items.” (Col.
1, ll. 18-20.)
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Appeal 2009-1231
Application 11/020,724

2. Deckers’ package had a “construction similar to that of a note book.”
(Deckers’ claim 1 at col. 2, l. 53; Figs. 1 and 2.) As shown in Figs. 1
and 2, several components or pockets 3 are attached to the middle fold
of cover 1. (Col. 1, ll. 62-67).
3. The package had an outside cover of opaque impervious material and
a lining of transparent or translucent impervious material. (Col. 1, ll.
21-26.)
4. Deckers preferred plastic for the cover and lining, for fastening
together by “thermo-plastic effect.” (Col. 1, ll. 44-47.)
5. The package could have “several linings and thus to constitute a
wallet with superposed pockets,” and the pockets could be
“subdivided into compartments . . . preferably by this same thermo-
plastic effect.” (Col. 1, ll. 48-52; Fig. 3.)
6. Deckers disclosed several ways for removing an item from a pocket or
compartment: cutting (col. 2, ll. 1-3), including a prepared cut such as
by scalloping in the outer edge of the pocket (col. 2, ll. 10-12),
making the material weaker (col. 2, ll. 12-13), including a thin wire
which would make a tear when pulled (col. 2, ll. 21-26), and using a
pre-opened pocket temporarily covered by an adhesive strip (col. 2, ll.
27-32).

Principles of Law Relating to Anticipation
“To anticipate a claim, a prior art reference must disclose every
limitation of the claimed invention, either explicitly or inherently.
Anticipation is an issue of fact, and the question of whether a claim
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limitation is inherent in a prior art reference is a factual issue.” In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997) (citations omitted).
“‘It is axiomatic that, in proceedings before the PTO, claims in an
application are to be given their broadest reasonable interpretation consistent
with the specification, . . . and that claim language should be read in light of
the specification as it would be interpreted by one of ordinary skill in the
art.’” In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990) (quoting In re Sneed,
710 F.2d 1544, 1548 (Fed. Cir. 1983)). “Absent an express definition in
their specification, the fact that appellants can point to definitions or usages
that conform to their interpretation does not make the PTO's definition
unreasonable when the PTO can point to other sources that support its
interpretation.” In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997).

Analysis of the Anticipation Issues
Claim 1
In Deckers’ notebook-type package, components 3 correspond to
pages in a notebook. See, e.g., Deckers’ Fig. 1; FF1. The Examiner found
that “the thermo-plastic material from which the components are formed
may be cut or torn (i.e. capable of being removed) from the packaging.”
(Ans. 6; Non-Final Rej. 6.) Deckers stated that the material could be cut.
(FF6.) We agree that Deckers’ package included the claimed “plurality of
packaging components which are removable” because the material from
which they were formed could be cut. Like a book has pages that are
removable by cutting or tearing, Deckers’ notebook-like package had a
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plurality of components 3 that were removable by cutting or tearing from the
middle fold of cover 1.
Claim 9
Deckers’ pockets containing bandages could be opened by several
means. (FF6.) When the pocket was complemented with a steel wire, and
the wire was simply pulled, a tear formed to open the pocket. (FF6.) In the
adhesive strip embodiment, when the adhesive strip was pulled, the pocket
opened. (FF6.) The Examiner found that pulling the wire or the adhesive
strip subjected the component to the “tension force” recited in claim 9.
(Ans. 5.) We agree.
Appellants argue that Deckers did not dispense the bandage as the
tension force was applied, citing the limitation in claim 9 that reads “the
absorbent article is dispensed . . . as the individual free end of the packaging
component is subjected to a tension force.” (App. Br. 5.) That is,
“[r]emoving a tape or opening a pocket by using a wire does not necessarily
mean that the item in the pocket will be dispensed.” (Id. at 7.) In
Appellants’ view, Deckers “only allow[s] a user access to the bandage in the
pocket.” (Id.)
Appellants do not refer to a definition for “dispense” in the
Specification, nor do we find one. However, Specification paragraph [54]
describes an embodiment in which “the packaging component 110 could
become opened as the packaging component 110 is pulled or otherwise
removed from the package 100, thereby dispensing the article at the same
time.” (Spec. 15.) The disclosure of this embodiment concludes: “As a
result, as the portion 111 of the packaging component becomes free, the
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article becomes accessible from the packaging component 110 and package
100. This is shown in Fig. 6D.” (Id.) We interpret the explanation in
paragraph [54] to mean that the article is dispensed when it becomes
accessible. Applying that meaning from the Specification to “dispensing” in
claim 9, we conclude that Deckers dispensed a bandage as tension was
applied to open the pocket, whether by the steel wire means or the adhesive
strip means, because the bandage became accessible when the tension
opened the pocket. Illustrations of possible embodiments do not limit the
claims, and we do not import Appellants’ Fig. 6D into claim 9.
Our reviewing court has approved the use of prior art rejections in the
alternative under Sections 102 and 103. In re Best, 562 F.2d 1252 (CCPA
1977). We find the evidence supports the Examiner’s rejection and affirm.

CONCLUSIONS OF LAW
Deckers described a package having “a plurality of packaging
components which are removable from the package;” and
Deckers’ device dispensed a bandage as the free end of the packaging
component was subjected to a tension force by a steel wire or pulling on an
adhesive strip.

SUMMARY
We affirm the rejection of claims 1-6, 8, 9, 11-16, and 18-23 under
35 U.S.C. §102(b) as anticipated by or, in the alternative, under 35 U.S.C.
§ 103(a) as obvious over Deckers.
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Appeal 2009-1231
Application 11/020,724

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

cdc
KIMBERLY-CLARK WORLDWIDE, INC.
Catherine E. Wolf
401 NORTH LAKE STREET
NEENAH WI 54956

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