Ex Parte Zehner et al

Board of Patent Appeals and Interferences

Sep 27, 2010

10680967 (B.P.A.I. Sep. 27, 2010)

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.
10/680,967 10/07/2003 Georgia L. Zehner 18,495 6069
23556 7590 09/27/2010
KIMBERLY-CLARK WORLDWIDE, INC.
Tara Pohlkotte
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
COLE, ELIZABETH M
ART UNIT PAPER NUMBER
1782
MAIL DATE DELIVERY MODE
09/27/2010 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GEORGIA L. ZEHNER
and DUANE G. UITENBROEK
____________

Appeal 2009-012565
Application 10/680,967
Technology Center 1700
____________

Before ADRIENE LEPIANE HANLON, JEFFREY T. SMITH, and
LINDA M. GAUDETTE, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a
civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for
rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the
“MAIL DATE” (paper delivery mode) or the “NOTIFICATION
DATE” (electronic delivery mode) shown on the PTOL-90A cover
letter attached to this decision.
Appeal 2009-012565
Application 10/680,967

2
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from a final rejection
of claims 1-27. We have jurisdiction under 35 U.S.C. § 6.
Appellants’ invention relates to composite outer covers
suitable for incorporation into disposable absorbent articles. Claim
1 is illustrative:
1. A disposable absorbent article having a
longitudinal centerline (70) and a lateral centerline (72), the
article comprising:
a fluid permeable liner (48);
a composite outer cover (30), the composite outer cover
(30) including: (a) an extensible, liquid impermeable outer
cover material (32) having an upper surface (36) and an
opposing lower surface (38); and (b) a non-tensioned elastic
(34), the non-tensioned elastic (34) being associated with at
least a portion of a surface (36, 38) of the outer cover material
(32), wherein upon activation of the composite outer cover at
least a portion of the composite outer cover (30) adjacent
where the outer cover material (32) and the non-tensioned
elastic (34) are associated, is adapted to (i) have a retraction
capability differential of at least 10 % and (ii) attain a three-
dimensional configuration, and wherein at least that portion of
the outer cover material (32) adjacent where the outer cover
material (32) and the nontensioned elastic (34) are associated,
is adapted to extend no less than 25 %; and
an absorbent core (50) disposed intermediate the liner
(48) and the composite outer cover (30).
The Examiner relies on the following references in rejecting
the appealed subject matter:
Osborn, III US 6,287,288 B1 Sept. 11, 2001
Appeal 2009-012565
Application 10/680,967

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Coles EP 0 650 714 A1 May 3, 1995
Claims 1-27 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Coles alone or in view of Osborn.2
OPINION
The issue on appeal is: Did the Examiner err in determining
that Coles, alone or in combination with Osborn, would have led a
person of ordinary skill in the art to form an absorbent article
comprising a liquid impermeable outer cover material, as required
by independent claim 1? We answer this question in the negative.
We AFFIRM.
Appellants argue that Coles, alone and in combination with
Osborn, fails to teach the claimed elements of the subject invention,
specifically, at least the extensible liquid impermeable outer cover
material. (App. Br. 9). Specifically Appellants state:
Coles and Osborn, alone or in combination, fail to teach or
suggest all of the claim limitations. . . . Of particular note, the
cited Coles reference fails to teach or suggest an extensible,
liquid impermeable outer cover material, such outer cover
material being a clearly recited element of the subject
invention and necessary to practice the inventive composite
outer cover. The Office Action recognizes that this element is
missing from the Coles reference in two regards. First, the
Office Action recognizes that Coles does not disclose a
retraction capability differential. Second, the Office Action

2 Appellants have not presented separate arguments for all of the
rejected claims. Rather, Appellants’ arguments are principally
directed to independent claim 1. Any claim not separately argued
will stand or fall with independent claim 1. See 37 C.F.R. §
41.37(c)(1)(vii) (2009).
Appeal 2009-012565
Application 10/680,967

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recognizes that Coles only discloses a layer that is generally
inextensible and only extends, if at all, at most 5% across the
wide range of force between 0.5 and 5 N/cm. To compensate
for these deficiencies, the Office Action proposes that even if
Coles does not teach such an extensible layer, the reference of
Osborn does teach the use of an extensible layer in
combination with the stretchable elastic film, scrim, or other
elastic element 1 taught in Coles.
(Br. 8-9).
The Examiner found that Coles describes an absorbent article
that comprises all of the elements of the present invention. The
Examiner recognized that Coles did not expressly describe the
retraction capability differential of at least 10% as specified in the
claimed invention. (Ans. 4-5). However, the Examiner properly
asserted that it would have been obvious to a person of ordinary skill
in the art to have employed an extendable topsheet or backsheet in
the absorbent article of Coles. (Ans. 5). The Examiner cited the
Osborn reference for describing extendable materials suitable for
formation of the topsheet and/or backsheet of an absorbent article
(id.). Coles discloses the object of the invention is to provide an
absorbent article by which stretchability can easily be provided in
selected areas and in a selected direction and in which the degree of
extendability can easily be controlled (col. 2, l. 54-col. 3, l. 1). A
person of ordinary skill in the art would have understood the proper
conditions for adding elastically extendable layers to composite
materials (see Coles and Osborn generally). While Coles may have
a preference on the extent in which the composite layer could have
been stretched, this does not detract from the knowledge of persons
Appeal 2009-012565
Application 10/680,967

5
of ordinary skill in this art who may desire an article that has further
stretching capability. The Osborn reference is evidence that persons
of ordinary skill in this art would have recognized that liner
materials could have been used to produce composite materials that
have the characteristics of the presently claimed invention. In other
words, the selection of liner materials that provide a retraction
capability differential specified by the claimed invention would have
been within the capabilities of a person of skill in this art. Contrary
to Appellants' arguments, the use of materials having an elongation
of at least 10% in the invention of Coles would not have destroyed
Coles' intended purpose of producing an absorbent article that could
easily be stretched in selected areas.
Based on the teachings of Coles and Osborn, we concur with
the Examiner that a person of ordinary skill in the art would have
been led to form an absorbent article having an extendable topsheet
or backsheet and comprising a liquid impermeable outer cover
material. See KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007) (In making an obviousness determination one “can take
account of the inferences and creative steps that a person of ordinary
skill in the art would employ.”)
For the foregoing reasons and those presented in the Answer,
the rejection of claims 1-27 under 35 U.S.C. § 103(a) as obvious
over the combined teachings of Coles and Osborn is affirmed.
ORDER
The rejection of claims 1-27 under 35 U.S.C. §103 (a) is
affirmed.
Appeal 2009-012565
Application 10/680,967

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No time period for taking any subsequent action in connection
with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(v).
AFFIRMED

bar

KIMBERLY-CLARK WORLDWIDE, INC.
TARA POHLKOTTE
2300 WINCHESTER RD.
NEENAH, WI 54956