EZ Male Pads, Inc.

Patent Trials and Appeals Board

Jan 19, 2021

2020001202 (P.T.A.B. Jan. 19, 2021)

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.
15/087,557 03/31/2016 Lorna Mateo Lumaque-Steeman EZMPI-95517 7247
24201 7590 01/19/2021
FULWIDER PATTON LLP
111 W. Ocean Blvd., Suite 1510
Long Beach, CA 90802
EXAMINER
SASS, SARA A
ART UNIT PAPER NUMBER
3786
NOTIFICATION DATE DELIVERY MODE
01/19/2021 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):
docketla@fulpat.com
eOfficeAction2@fulpat.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LORNA MATEO LUMAQUE-STEEMAN and
WADE C. JOHNSON
Appeal 2020-001202
Application 15/087,557
Technology Center 3700
Before BENJAMIN D. M. WOOD, JEREMY M. PLENZLER, and
BRANDON J. WARNER, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 18–25. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as EZ Male Pads,
Inc. Appeal Br. 2.
Appeal 2020-001202
Application 15/087,557

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CLAIMED SUBJECT MATTER
The claims are directed to an absorbent pad. Claim 18, reproduced
below, is illustrative of the claimed subject matter:
18. A urine trap for a male patient, comprising:
a pad having a fluid absorbent layer on a first surface and
a fluid impermeable layer on an opposite surface, the pad further
comprising:
a first wing defined by a first fold line, an outer edge, an
inner edge, and a lateral edge;
a second wing defined by a second fold line, an outer edge,
an inner edge, and a lateral edge substantially parallel to the
second fold line; and
a main absorbent region defined by the first fold line, the
second fold line, an outer edge having a first radius, and an inner
edge having a second radius; and
the outer edge of the first wing defining a first arc that
coincides with the outer edge of the main absorbent region and a
portion of the inner edge of the first wing defining a second arc
that coincides with a portion of the inner edge of the main
absorbent region;
the lateral edge of the first wing coincides with the second
fold line; and
the outer edge of the second wing defining a third arc that
coincides with a portion of the outer edge of the main absorbent
region and a portion of the outer edge of the first wing;
whereby the main absorbent region, the first wing
cooperate, and the second wing cooperate to form a conical
compartment.
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Application 15/087,557

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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Nozaki US 6,129,719 Oct. 10, 2000
REJECTIONS
Claim 23 is rejected under 35 U.S.C. § 112(b) as being indefinite.
Claims 18–22 and 24 are rejected under 35 U.S.C. § 102(a)(l) as
anticipated by Nozaki.
Claims 23 and 25 are rejected under 35 U.S.C. § 103 as being
unpatentable over Nozaki.
OPINION
Indefiniteness
Appellant does not address the Examiner’s rejection of claim 23 as
being indefinite. Our rules state that Appellant’s “arguments shall explain
why the examiner erred as to each ground of rejection contested by
appellant.” See 37 C.F.R. § 41.37(c)(1)(iv). “When the appellant fails to
contest a ground of rejection to the Board . . . the PTO may affirm the
rejection of the group of claims that the examiner rejected on that ground
without considering the merits of those rejections.” Hyatt v. Dudas, 551
F.3d 1307, 1314 (Fed. Cir. 2008). Accordingly, because there is no
argument from Appellant, we summarily affirm the Examiner’s
indefiniteness rejection of claim 23.
Anticipation/Obviousness
Claim 18 recites a conically-shaped pad (“a pad” that “form[s] a
conical compartment”). The pad includes “a first wing,” “a second wing,”
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Application 15/087,557

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and “a main absorbent region.” The “first wing” and “second wing” are
folded along respective “fold lines” (i.e., “a first fold line” and “a second
fold line”) to create the “conical compartment.” The “lateral edge [of the
second wing is] substantially parallel to the second fold line.” That is, the
second fold line is separated from the lateral edge of the second wing by an
equal distance at all points.
The “fold lines,” themselves, are not defined by any particular
structural feature. Indeed, the Specification clearly states that these are
“imaginary fold lines.” See Spec. ¶ 54. Moreover, as clear from the
Specification and drawings, the ends of a generally c-shaped pad are simply
folded to achieve the recited conical pad. Nevertheless, the Examiner fails
to establish that the claim is anticipated by Nozaki.
For example, Appellant disputes the Examiner’s finding as to whether
Nozaki discloses the “lateral edge [of the second wing being] substantially
parallel to the second fold line.” Appeal Br. 8.
Initially, we note that the Examiner’s rejection is somewhat
confusing, as it relies on disparate embodiments from Nozaki and does not
include a clear explanation of the findings relied upon. See Final Act. 3–4
(citing Figure 1 and Figures 4A–B (which are a different embodiment than
Figure 1), and also referencing slit 22 (which is from yet another
embodiment)).2 Nevertheless, as best we can tell, the Examiner considers
the upper edge of the pad in each embodiment as the recited “lateral edges”

2 Appellant notes these different embodiment in its Brief. Appeal Br 8. The
Examiner simply responds, without further explanation, that “[t]here is no
switching of embodiments,” and “[t]he instant rejection relies on two
figures, Figures 1, 4, to show what is being claimed.” Ans. 9.
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Application 15/087,557

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of the wings, and vertically extending portions of the dashed lines
surrounding absorbent core 3 in each of Figures 1 and 4A–B as the recited
“fold line[s].” Final Act. 3–4; Ans. 8–9. That is, the Examiner considers
lines that are perpendicular to one another as being “substantially parallel” to
one another. Because this is clearly erroneous, we do not sustain the
Examiner’s decision to reject claim 18 as being anticipated by Nozaki. The
stated bases for the Examiner’s rejections related to claims 19–25 do not
cure this deficiency.
CONCLUSION
The Examiner’s anticipation and obviousness rejections are reversed.
The Examiner’s indefiniteness rejection is affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
23 112(b) Indefiniteness 23
18–22, 24 102(a)(a)(1) Nozaki 18–22, 24
23, 25 103 Nozaki 23, 25
Overall
Outcome
23 18–22, 24,
25

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Application 15/087,557

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TIME PERIOD FOR RESPONSE
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).
AFFIRMED IN PART