First Quality Baby Products, LLCv.KIMBERLY-CLARK WORLDWIDE, INC.

Patent Trial and Appeal Board

May 28, 2015

12849260 (P.T.A.B. May. 28, 2015)

Trials@uspto.gov Paper No. 41
571-272-7822 Entered: May 28, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

FIRST QUALITY BABY PRODUCTS, LLC,
Petitioner,

v.

KIMBERLY-CLARK WORLDWIDE, INC.,
Patent Owner.
____________

Case IPR2014-00169
Patent 8,579,876 B2
____________

Before TONI R. SCHEINER, FRANCISCO C. PRATS, and
DENISE M. POTHIER, Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73

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I. INTRODUCTION
A. Background
First Quality Baby Products, LLC (“Petitioner”) filed a Petition
requesting an inter partes review of claims 15–22 of U.S. Patent No.
8,579,876 B2 (Ex. 1001, “the ’876 patent”) pursuant to 35 U.S.C. §§ 311–
319. Paper 1 (“Pet.”). Kimberly-Clark Worldwide, Inc. (“Patent Owner”)
filed a Preliminary Response. Paper 6 (“Prelim. Resp.”). On the basis of the
information presented in the Petition and the Preliminary Response, the
panel determined that Petitioner had demonstrated a reasonable likelihood of
prevailing with respect to at least one of the challenged claims, and on May
30, 2014, an inter partes review of claims 15–22 was instituted on the
following asserted grounds: that claims 15–20 and 22 would have been
unpatentable under 35 U.S.C. § 103(a) as obvious over Widlund1 and Toyo;2
and claim 21 would have been unpatentable under 35 U.S.C. § 103(a) as
obvious over Widlund, Toyo, and Kuske.3 Paper 9 (“Dec.”).
After trial was instituted, Patent Owner filed a Patent Owner
Response (Paper 15, “PO Resp.”), to which Petitioner filed a Reply (Paper
19, “Pet. Reply”).
Both parties presented witness testimony via declaration during the
course of the proceeding. Patent Owner presented the Declaration of Kent
A. Franklin (Ex. 2004, “Franklin Decl.”) with its Patent Owner’s Response.4

1 WO 95/27462 (published Oct. 19, 1995) (Ex. 1003).
2 JP 3021190 (issued Feb. 16, 1996) (Ex. 1005) (a certified English
translation begins on page 12 of the exhibit).
3 WO 97/49618 (published Dec. 31, 1997) (Ex. 1007).
4 All references to the Franklin Declaration are to the revised version
submitted September 16, 2014.
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Petitioner presented the Declaration of Daniel D. Gardner (Ex. 1017,
“Gardner Decl.”) with its Reply.
Patent Owner filed a Motion to Exclude Evidence (Paper 24; “Mot. to
Exclude”), and a Motion for Observations on Cross Examination of Mr.
Gardner (Paper 26; “Mot. Obs.”). Petitioner filed an Opposition to the
Motion to Exclude Evidence (Paper 28; “Pet. Opp.”), and a Response to
Patent Owner’s Motion for Observations on Cross Examination (Paper 30;
“Resp. to Mot. Obs.”). Patent Owner filed a Reply to the Opposition to the
Motion to Exclude Evidence. Paper 29 (“Reply to Opp.”).
Oral argument was requested by both parties, and was held on January
30, 2015. A transcript of the oral argument is included in the record.
Paper 40 (“Tr.”).5
The Board has jurisdiction under 35 U.S.C. § 6(c). This Final Written
Decision, issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73,
addresses issues and arguments raised during trial.
For the reasons discussed below, we determine that Petitioner has
proved, by a preponderance of the evidence, that claims 15–22 of the ’876
patent are unpatentable.
Patent Owner’s Motion to Exclude Evidence is dismissed.
B. Related Matters
The parties do not identify any judicial or administrative matters that
would affect, or be affected by, a decision in this proceeding. Pet. 6;
Paper 5.

5 Petitioner and Patent Owner filed Objections to Demonstratives (Papers
38, 39). In the Final Written Decision, we have considered only arguments
and evidence presented in the demonstratives that were presented previously
or are supported by the record.
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C. The ’876 Patent
The ’876 patent, titled “Tucked Fastener for Improved Fastener
Performance,” relates to pants-like absorbent garments, e.g., children’s
diapers and training pants, with refastenable side seams. Ex. 1001, 1:14–15,
2:2–4. The ’876 patent explains that portions of these garments are typically
folded, or tucked, “to create a more compact orientation” for packaging, but
“fastener performance can be compromised when a resilient fastening
component in a refastenable seam is creased during processing or
compression in preparation for or during packaging.” Id. at 7:50–52, 8:35–
38.
Figure 18 of the ’876 patent is reproduced below.

Figure 18 is a top view of the waist region of absorbent garment 20,
showing front side panels 34 and back side panels 134 folded over back
panel 135. As shown in the figure, each back side panel 134 has two folds,
one at or near the edge of back panel 135, and another at or near the edge of
fastening component 82; each front side panel 34 has only one fold.
Ex. 1001, 17:56–18:10. In that configuration, refastenable seams 80 and
fastening components 82 lie flat in a plane parallel to front waist region 90
and back waist region 92. Id.
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According to the ’876 patent, “[a] flat orientation of resilient fastening
components in the tucked position prevents creases from occurring in the
fastening components, thereby preserving the available fastener seam
strength and making the fasteners less likely to disengage during product
application and wear.” Id. at 7:62–67.
D. Illustrative Claims
Of the challenged claims, claim 15 is the only independent claim.
Claims 15 and 16, reproduced below, are illustrative.
15. A folded disposable absorbent garment comprising:
an absorbent chassis including a bodyside liner, an outer
cover, and an absorbent assembly positioned between the
bodyside liner and the outer cover, a front region, a back region,
a crotch region extending between and interconnecting the front
and back regions, a waist opening and a pair of leg openings,
the front region having first and second front side panels, and
the back region having first and second back side panels;
a first refastenable seam being defined by a resilient
fastening component being releasably secured to a mating
fastening component, the resilient fastening component being
disposed on one of the first front side panel and the first back
side panel and the mating fastening component being disposed
on the other one of the first front side panel and the first back
side panel, the first front side panel and the first back side panel
being folded such that the first refastenable seam lies in a plane
generally parallel to a plane in which at least a portion of the
absorbent assembly lies; and
a second refastenable seam being defined by a resilient
fastening component being releasably secured to a mating
fastening component, the resilient fastening component being
disposed on one of the second front side panel and the second
back side panel and the mating fastening component being
disposed on the other one of the second front side panel and the
second back side panel, the second front side panel and the
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second back side panel being folded such that the second
refastenable seam lies in a plane generally parallel to a plane in
which at least a portion of the absorbent assembly lies and in
substantially the same plane as the first refastenable seam.
16. The folded disposable absorbent garment of claim 15
wherein the resilient fastening component of the first
refastenable seam is disposed on the first front side panel and
the mating fastening component of the first refastenable [seam]
is disposed on the first back side panel, the first back side panel
being folded twice and the first front side panel being folded
once, the resilient fastening component of the second
refastenable seam being disposed on the second front side panel
and the mating fastening component of the second refastenable
seam being disposed on the second back side panel, the second
refastenable seam overlying the absorbent assembly in the back
region of the chassis, the second back side panel being folded
twice and the second front side panel being folded once.
Ex. 1001, 20:45–21:23.
E. Grounds of Unpatentability Instituted for Trial
An inter partes review was instituted based on the following grounds
of unpatentability:
Claims 15–20 and 22 under 35 U.S.C. § 103(a) as unpatentable over
Widlund and Toyo; and
Claim 21 under 35 U.S.C. § 103(a) as unpatentable over Widlund,
Toyo, and Kuske.
II. ANALYSIS
A. Claim Construction
In an inter partes review, “[a] claim in an unexpired patent shall be
given its broadest reasonable construction in light of the specification of the
patent in which it appears.” 37 C.F.R. § 42.100(b); see also In re Cuozzo
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Speed Tech., LLC, 778 F.3d 1271, 1280 (Fed. Cir. 2015) (“Congress
implicitly adopted the broadest reasonable interpretation standard in
enacting the AIA,” and “the standard was properly adopted by PTO
regulation.”). There is a “heavy presumption” that a claim term carries its
ordinary and customary meaning. CCS Fitness, Inc. v. Brunswick Corp.,
288 F.3d 1359, 1366 (Fed. Cir. 2002); In re Translogic Tech., Inc., 504 F.3d
1249, 1257 (Fed. Cir. 2007).
Claim 16 recites “the first back side panel being folded twice and the
first front side panel being folded once” and “the second back side panel
being folded twice and the second front side panel being folded once.”
In its Petition, Petitioner proposed that the above claim terms—which
are identical, except that the first refers to the first front and back side
panels, while the second refers to the second front and back side panels—
“should be interpreted to mean ‘the front and back side panels each have a
first fold where the side panels are folded over the absorbent assembly, and
the back side panel has a second fold different from the first fold in the back
side panel.’” Pet. 15.
In support of its proposed interpretation, Petitioner provided an
annotated version of Figure 18, which illustrates graphically Petitioner’s
interpretation of the relevant folds in back side panels 134 and front side
panels 34 of diaper 20. Figure 18 of the ’876 patent, as annotated by
Petitioner, is reproduced below.
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ANNOTATED
Annotated Figure 18 shows two folds, labeled FB1, FB2 by Petitioner, in each
back side panel 134, and one fold FF1 in each back side panel 34. Pet. 11–
12.
Claim 16 depends from claim 15. Claim 15 requires that “the first
refastenable seam lies in a plane generally parallel to a plane in which at
least a portion of the absorbent assembly lies,” and that “the second
refastenable seam lies in a plane generally parallel to a plane in which at
least a portion of the absorbent assembly lies.” The Specification, in
describing Figure 18, indicates that the requisite parallel configuration is
achieved by folding the front side panels twice, and the back side panels
once, or vice versa. Ex. 1001, 17:56–18:10.
Accordingly, in the Decision on Institution, Petitioner’s proposed
interpretation of “the first back side panel being folded twice and the first
front side panel being folded once” as meaning that “the front and back side
panels each have a first fold where the side panels are folded over the
absorbent assembly, and the back side panel has a second fold different from
the first fold in the back side panel” was determined to be the broadest
reasonable interpretation of the claim term in light of the Specification.
Dec. 8. Neither Petitioner nor Patent Owner objects to that construction of
the term, and based on our analysis of the full record developed during trial,
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we determine it is not necessary to depart from it for purposes of this
decision.
B. Principles of Law
To prevail in its challenge to the patentability of the claims, Petitioner
must prove unpatentability by a preponderance of the evidence. 35 U.S.C.
§ 316(e); 37 C.F.R. § 42.1(d). A claim is unpatentable under 35 U.S.C.
§ 103(a) if the differences between the subject matter sought to be patented
and the prior art are such that the subject matter as a whole would have been
obvious at the time the invention was made to a person having ordinary skill
in the art to which said subject matter pertains. KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 406 (2007). The question of obviousness is resolved on
the basis of underlying factual determinations including: (1) the scope and
content of the prior art; (2) any differences between the claimed subject
matter and the prior art; (3) the level of ordinary skill in the art; and (4)
objective evidence of nonobviousness. Graham v. John Deere Co., 383 U.S.
1, 17–18 (1966).
Moreover, it is well settled that “any need or problem known in the
field of endeavor at the time of invention and addressed by the patent can
provide a reason for combining the elements in the manner claimed.” KSR,
550 U.S. at 420. As long as some suggestion to combine the elements is
provided by the prior art as a whole, the law does not require that they be
combined for the reason or advantage contemplated by the inventor. In re
Beattie, 974 F.2d 1309, 1312 (Fed. Cir. 1992); In re Kronig, 539 F.2d 1300,
1304 (CCPA 1976).
We analyze the instituted grounds of unpatentability in accordance
with those principles.
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C. Claims 15–20 and 22—Obviousness over Widlund and Toyo
Petitioner asserts that the folded absorbent garment of claims 15–20
and 22 is unpatentable under 35 U.S.C. § 103, given the combined
disclosures of Widlund and Toyo. Pet. 26–33. Patent Owner contends that
the result of combining Widlund and Toyo would be unpredictable, and that
the combination would not meet the limitations of the challenged claims.
PO Resp. 18–31.
Having reviewed the Petition, Patent Owner’s Response, and
Petitioner’s Reply, as well as the relevant evidence discussed in each of
those papers, we are persuaded, by a preponderance of the evidence, that
claims 15–20 and 22 are unpatentable over the combined disclosures of
Widlund and Toyo.
1. Widlund (Ex. 1003)
Widlund discloses “a pants-type diaper,” depicted in Figure 5,
reproduced below.

Figure 5 of Widlund is a perspective view of pants-type diaper 20
comprising absorbent body 5 enclosed between inner and outer casing sheets
9 and 2, respectively. Ex. 1003, 8:34–9:1. As shown in the figure, “the
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front and rear side parts of the pant diaper are joined together by means of a
releasable and refastenable fastener means 20.” Id. at 10:18–20.
Figures 11 and 12 of Widlund are reproduced below.

Figures 11 and 12 of Widlund “illustrate schematically a pants-type diaper
blank 36 in which . . . a fastener element is comprised of two mutually
coacting parts 37, 38.” Ex. 1003, 14:30–33. Figures 11 and 12 show that
parts 37 “are fastened respectively to the inner surface of the blank [36] at
the front side parts thereof, while the other part[s] 38 of the fastener
elements . . . [are] fastened to the outer surface of the blank at the rear side
parts thereof.” Id. at 14:33–37.
Widlund additionally discloses:
In order to produce a finished pants-type diaper [e.g., the diaper
shown in Figure 5] from a blank that has the configuration
illustrated in Figure 11, those parts of the rear side parts of the
blank 36 that contain the parts 38 of the fastener elements are
folded against the inner surface of the blank, so as to provide a
blank 36 having the configuration shown in Figure 12. The
blank is then folded so that the front and the rear side parts
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thereof are placed edge-to-edge, and the coacting parts 37, 38
are pressed firmly against one another.
Id. at 15:6–15.
Widlund discloses that the finished diapers are “conveyed . . . to a
packaging station in which they are packaged,” but does not provide any
further folding or packaging instructions. Id. at 7:34–35.
2. Toyo (Ex. 1005)
Toyo discloses disposable underpants, similar to Widlund’s pants-type
diaper, except that “both side edges [of Toyo’s underpants] are adhered”
permanently (Ex. 1005 ¶ 2), rather than being releasable and refastenable.
According to Toyo, if the disposable underpants were packaged in
their unfolded “approximate” or “truncated” pentagon form (id. ¶¶ 2, 4),
“any resulting package would be too irregularly shaped for easy handling”
(id. ¶ 4). Toyo, therefore, recommends folding the side selvages of the
underpants toward the center of the underpants to form “an approximately
rectangular shape” suitable for packaging. Id. ¶¶ 4, 5. Toyo explains that:
[T]he “selvages” of these disposable underpants are parts
corresponding to the two sides of the underpants in which an
absorbent part is not interposed in the layered structure . . . and
thus the thickness of the selvages is thinner than that of the
absorbent part. Therefore, there is no increase in the thickness
of the disposable underpants when the disposable underpants of
this invention are folded.
Id. ¶ 9.
Toyo discloses several possible folding configurations for its
disposable underpants resulting in a flat, approximately rectangular shape.
Figure 6, reproduced below, depicts the first of these folding configurations.
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Figure 6 depicts a front elevation and cross-section of Toyo’s folded
disposable underpants wherein selvages S, S are folded and inserted between
the front panel and the back panel of the disposable underpants. Ex. 1005,
Abstract, ¶ 5. In other words, selvages S, S are tucked between the front and
back panels of the underpants to achieve a flat, approximately rectangular
shape.
However, Toyo teaches “it is extremely difficult to perform the
folding process illustrated in Figure 6” using the “typical continuous
production method for disposable underpants” (id. ¶ 6). Toyo cautions:
If the folding is not done precisely, many underpants will be
produced in which one selvage S of the underpants will be
folded irregularly and the selvage S is not accurately inserted
between the front and rear panels of the underpants, or when the
underpants are folded, the selvage S protrudes on the outside,
which results in partial irregular protrusion when the
underpants are packaged in packaging bags.
Id. ¶ 8.
Accordingly, Toyo discloses alternative folding configurations,
wherein “the resulting underpants are folded correctly and compactly into a
rectangle of about the same size as the absorbent region” (id. ¶¶ 10, 11, 18),
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so that “even when stacking a . . . number of disposable underpants, there is
no abnormal bulging or protrusion, and a cubic package can be smoothly
achieved” (id. ¶ 18). In one of these alternative configurations, “one of the
right or left selvages is housed between the . . . thick front panel and the
absorbent panel of the back panel (which is folded in two front-to-back)” (id.
¶ 10), and “the other selvage is folded back toward the outside of the
disposable underpants” (id.). In another alternative configuration, “both the
left and right selvages are folded back to the outside of the front panel of the
underpants, or . . . both the left and right selvages are folded back to the
outside of the back panel of the underpants” (id. ¶ 11). Finally, “either the
left or right selvage is folded back to the front panel of the underpants or to
the rear part thereof” (id.).
Figure 2 of Toyo is reproduced below.

Figure 2 depicts a front elevation and cross-section of Toyo’s folded
disposable underpants “wherein both selvages S1 and S2 of disposable
underpants P are folded up towards the front of the front panel F.” Ex. 1005
¶ 16. Alternatively, “selvages S1 and S2 can be folded to the outside of the
back panel B of the underpants.” Id.
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3. Analysis—Claims 15–20 and 22
Claim 15
Petitioner asserts that “the refastenable training pant of Widlund has
all of the elements of the absorbent garment of [claim 15], with the
exception that the side panels are not folded over the absorbent assembly.”
Pet. 27 (internal footnote omitted). Petitioner asserts, “[h]owever, in Toyo,
the side panels S1 and S2 of the training pant P are folded such that the
seams 4 are parallel to the absorbent assembly and lie in the same plane as
each other, as shown” in Figure 2 of Toyo (id. at 27–28), reproduced below,
as annotated by Petitioner.

Figure 2 of Toyo, as annotated by Petitioner, depicts a front elevation and
cross-section of Toyo’s training pant P, where side panels S1 and S2 are
folded over, and lying in a plane generally parallel to, the absorbent
assembly of training pant P. Pet. 28.
Petitioner asserts that it would have been obvious for one of ordinary
skill in the art to fold the side panels of Widlund’s training pants over the
absorbent assembly in preparation for packaging because “there were only ‘a
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finite number of identified, predictable solutions’ for positioning side panels
of training pants in a package,” and Toyo “recommends folding the side
panels over the absorbent body” (id. at 29), to avoid “‘protrusions’ which
cause the package of training pants to swell” (id. at 28). Petitioner further
asserts that folding Widlund’s pants-type diaper in that manner “will result
in the ‘refastenable’ seams 20 being parallel to the absorbent assembly 5 and
lying [in] the same plane as each other” (id. at 29), as recited in claim 15.
Patent Owner argues that “Petitioner’s ‘obvious to try’ rationale” is
supported merely “with a conclusory statement that only ‘a finite number of
identified, predictable solutions’ for positioning side panels of training pants
in a package existed” (PO Resp. 16), Petitioner fails to “identif[y] what these
limited number of predictable solutions are” (id.), and “offers no support in
the form of evidence or expert witness testimony on which it can base such a
position” (id.). Patent Owner, supported by its witness, Mr. Franklin, argues
that “side panels can be folded or arranged in many ways, including not
being folded at all, for positioning in a package.” Id. (citing Ex. 2004 ¶ 34).
We are not persuaded by this argument. Petitioner plainly relies on
the limited number of configurations disclosed by Toyo as suitable for
folding disposable underpants in a manner that avoids “‘protrusions’ which
cause the package of training pants to swell” (Pet. 28, 29). We agree with
Petitioner that it would have been obvious for one of ordinary skill in the art
to fold the side panels of Widlund’s training pants over the absorbent
assembly in preparation for packaging based on Toyo’s suggestion, in order
to avoid irregular protrusions and bulges which would interfere with
packaging the underpants. That challenged claim 15 is limited to one
particular suitable folding configuration disclosed by Toyo does not make
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that folding configuration any less obvious. See Merck & Co. v. Biocraft
Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (The disclosure in the prior
art of “a multitude of effective combinations does not render any particular
formulation less obvious.”).
Patent Owner also takes issue with Petitioner’s assertion that folding
the side panels of Widlund’s pants-type diaper over the absorbent body (i.e.,
assembly) “will result in the ‘refastenable’ seams 20 being parallel to the
absorbent assembly 5 and lying in the same plane as each other.”6 PO Resp.
15; Pet. 29. Patent Owner, again relying on the testimony of Mr. Franklin,
argues that “the folding scheme taught by Toyo yields less than predictable
results regarding the location and orientation of the seams” (PO Resp. 25);
thus, “there is uncertainty whether [Toyo’s] bonded seams would lie
substantially parallel to the absorbent part and in the same plane as each
other when packaged” (id. at. 19), and “folding Widlund in the manner

6 To the extent Patent Owner argues that Petitioner’s assertions in the
Petition are merely “conclusory attorney argument without expert witness
testimony as to what the teachings of the cited art would reasonably convey
to one of ordinary skill in the art” (PO Resp.15), we note that “[t]estimony
from a technical expert can be helpful to show what would have been known
to a person of ordinary skill in the art and explain the significance of
elements in a claim,” but it “is not a prerequisite for establishing
unpatentability by a preponderance of the evidence, . . . just as it is not a
prerequisite for a petition seeking inter partes review.” Guangdong Xinbao
Electrical Appliances Holdings v. Adrian Rivera, Case IPR2014-00042, slip
op. at 22, 23 (PTAB Feb. 6, 2015) (Paper 50). This is especially true where,
as here, the invention and prior art references are directed to relatively
straightforward and easily understandable technology. See Perfect Web
Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009)
(explaining that expert opinions are not always a prerequisite to show
unpatentability, because in many patent cases the technology will be easily
understandable without the need for expert explanatory testimony).

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proposed by Petitioner suffers from the same unpredictability present in the
arrangement and folding scheme taught by Toyo” (id. at 26). Patent Owner
contends, therefore, that:
[F]olding the side parts of Widlund’s pants-type diaper blank
. . . using the method taught by Toyo would not result a folded
disposable absorbent garment wherein front and back side
panels are folded such that each of the refastenable seams
overlies the outer surface of one of the front region and the back
region of the absorbent chassis in a plane generally parallel to
the front and back regions of the absorbent chassis as recited in
claim 15 of the [’876] patent.
Id. at 29.
We have considered the arguments and evidence Patent Owner relies
on in support of these contentions, particularly the testimony of Patent
Owner’s witness, Mr. Franklin, but are not persuaded.
First, Mr. Franklin contends “[i]f Widlund was stretched and laid flat
along the lateral axis like Toyo Figure 5, prior to folding, the fastening
components would be creased” (Ex. 2004 ¶ 60a), thus, folding the side
panels over the absorbent assembly as taught by Toyo would not result in a
folded garment where the refastenable seams lie “in a plane generally
parallel to a plane in which at least a portion of the absorbent assembly lies”
(id. ¶ 60).
Figure 5 of Toyo, depicting elevation and cross-sectional views of
Toyo’s disposable underpants prior to folding for packaging, is reproduced
below:
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Figure 5 of Toyo depicts elevation and cross-section views of Toyo’s
disposable underpants prior to folding for packaging (i.e., with the selvages
unfolded).
Mr. Franklin’s concept of Widlund’s pants-type diaper “stretched and
laid flat along the lateral axis like Toyo Figure 5, prior to folding” (Ex. 2004
¶ 60a) is shown in the illustration reproduced immediately below:

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The illustration reproduced immediately above shows Mr. Franklin’s
concept of a cross-section of Widlund’s pants type diaper, configured as in
Figure 5 of Toyo. Again, relying on this illustration, Mr. Franklin contends
“[i]f Widlund was stretched and laid flat along the lateral axis like Toyo
Figure 5, prior to folding, the fastening components would be creased” upon
folding (Ex. 2004 ¶ 60a), and the refastenable seams would not lie “in a
plane generally parallel to a plane in which at least a portion of the absorbent
assembly lies” (id. ¶ 60).
Nevertheless, we are not persuaded because Mr. Franklin’s illustration
does not reflect accurately Widlund’s teachings, Toyo’s teachings, or
Petitioner’s stated rationale. To produce Widlund’s finished pants-type
diaper from a blank that has the configuration illustrated in Widlund’s
Figure 11, “those parts of the rear side parts of the blank 36 that contain the
parts 38 of the fastener elements are folded against the inner surface of the
blank, so as to provide a blank 36 having the configuration shown in Figure
12.” Ex. 1003 15:8–12; see supra Part II.C.1. “The blank is then folded so
that the front and the rear side parts thereof are placed edge-to-edge, and the
coacting parts 37, 38 are pressed firmly against one another.” Ex. 1003,
15:12–15. Thus, at the point Widlund’s finished diaper is conveyed to the
packaging station (see id. at 7:34–35), the diaper and side parts are flat and
fastener elements 37, 38 are parallel to the plane of the lateral axis depicted
in Mr. Franklin’s illustration. Similarly, Toyo’s diaper is flat prior to
folding. See Ex. 1005, Fig. 5. In Mr. Franklin’s illustration, however, the
finished diaper is expanded as if for use, and the fastener elements are
perpendicular to the plane of the lateral axis. The rationale implicit in Mr.
Franklin’s illustration is that re-flattening the diaper would crease the
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fasteners, and thus, the fasteners would not lie in a plane generally parallel to
the absorbent assembly upon folding the side panels over the absorbent
assembly. Mr. Franklin has not explained adequately, however, why one of
ordinary skill in the art would expand and re-flatten Widlund’s already-flat
diaper before packaging.
Mr. Franklin further contends that “there is no certainty that [Toyo’s]
bonded seams would lie substantially parallel to the absorbent and in the
same plane as each other when packaged” (Ex. 2004 ¶ 61), because “product
attributes such as thickness of the absorbent core and cross direction distance
from the side panel attachment to the bond line can all affect the final
orientation of the bond area relative to the absorbent” (id. ¶ 63). Patent
Owner contends that folding Widlund’s diaper in the manner taught by Toyo
“suffers from the same unpredictability” (PO Resp. 26).
In support of his position, Mr. Franklin relies, in large part, on a
comparison between Toyo’s Figure 5 (reproduced supra) and an annotated
version of Toyo’s Figure 2. Toyo’s Figure 2, as annotated by Mr. Franklin,
is reproduced below.

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Figure 2 of Toyo, as annotated by Mr. Franklin, depicts a cross-section of
Toyo’s training pant P, with side panels S1 and S2 folded over the absorbent
assembly of training pant P.
Mr. Franklin notes that Toyo’s Figure 5 shows that “the lengths of the
front and back selvages between the absorbent part and the bonded seams 4
are equal” prior to folding. Ex. 2004 ¶ 62. Mr. Franklin asserts, however,
“[u]pon folding in the manner suggested by Toyo, with reference to
[annotated] Figure 2, the lengths of the back selvages BS are substantially
greater than the lengths of the front selvages FS.” Id. According to Mr.
Franklin, “[f]or the bonded seams 4 to lie parallel to the absorbent part of the
underpants and in the same plane as each other upon folding in this manner,
the back selvages BS must extend along a longer lateral path from the
absorbent part to the engagement seam 4 than the front selvages FS.” Id. ¶
63. Mr. Franklin contends that the back selvages could extend more than the
front selvages only “if the length of the back selvage BS increases—such as
by stretching—and/or if the length of the front selvage FS decreases—such
as by wrinkling, bunching, or the like.” Id. Further, “releasing the
stretching force such as before or during packaging allows the back selvages
to contract to their relaxed state” (id. ¶ 64), and wrinkling and bunching of
the front selvage “can also result in folding or creasing at unpredictable
locations along the lengths of the selvages, including at the bonded seam,
upon compacting the stacked underpants P in the packaging” (id. ¶ 65).
Petitioner argues that Mr. Franklin’s conclusions about the
unpredictability of folding Toyo’s underpants are “based on a series of
wrong premises” (Pet. Reply 5). We agree, and credit the testimony of
Petitioner’s witness, Mr. Gardner, on this point.
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Specifically, Mr. Gardner disagrees with Mr. Franklin’s assertions
that “the ‘lengths’ of the back side panels [are] ‘substantially greater than the
lengths’ of the front side panels” when folded (Ex. 1017 ¶ 43 (citing Ex.
2004 ¶ 63)); that this purported “change in measurements shows that the
back side panels stretch[ ] during folding . . . and/or the front side panels
bunch[ ] up” (id. ¶ 44 (citing Ex. 2004 ¶ 63)); and that “this alleged
stretching and bunching may . . . move[ ] the seams 4 into different planes,
and as a result, the seams may not be generally parallel to the absorbent
assembly” (id. (citing PO Resp. 19–22)).
As Mr. Gardner explains:
47. A simple review of the Figures in Toyo reveals that
they are not drawn to scale. For example, Figure 2 shows a
substantial gap (labeled G1) separating the back B and front F
sides of the absorbent assembly 5. (See Ex. 1005, Toyo at Fig.
2). Figure 2 also shows a sizeable gap (labeled G2) between the
folded side panels S and the front F side of the absorbent
assembly. I have annotated Figure 2 to show these gaps:

48. The pant in Figure 2 has been completely folded
through the crotch region so that the front F region of the
absorbent assembly 5 overlies the back region 5. (Id). In
addition, the side panels S1 and S2 have been folded at the edge
of the absorbent assembly so that the side panels are laid flat
against the absorbent assembly. (Id. at ¶¶ [0016]–[0018]).
Ex. 1017 ¶¶ 47, 48.
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Mr. Gardner further explains that “Figure 2 is a two dimensional
drawing, [thus] the crotch region is not shown.” Id. ¶ 49. According to Mr.
Gardner, “[a] person of ordinary skill in the art would understand that the
gap G1 is an exaggeration that helps illustrate that the training pant is folded
in half through the crotch” (id.), and “the gap G2 is an exaggeration that
helps to illustrate the folds in the side panels against the absorbent
assembly” (id. ¶ 50). Mr. Gardner asserts that “there are no actual gaps
between the front F and back B regions of the absorbent assembly” and
“[t]hese components actually touch each other” (id. ¶ 51), which “is
consistent with Toyo’s teaching that . . . the side panels are ‘folded against
the outside of the’ absorbent assembly,” and “the training pant has a ‘flat
shape’ when ‘folded up as in Figure 2.’” (id. ¶¶ 52, 53 (citing Ex. 1005
¶¶ 16, 17). Likewise, Mr. Gardner asserts that “the lengths of the side panels
in Figure 2 are clearly exaggerated to compensate for the [imaginary] gaps
. . . and are not intended to represent a change in length or width.” Id. ¶ 56.
Thus, Mr. Gardner disagrees with the underlying premise of Mr.
Franklin’s testimony, and concludes that “[a] person of ordinary skill in the
art would understand that without the gaps, the front and back side panels
actually extend about the same distance when folded over the absorbent
assembly” (id.). That being the case, Mr. Gardner also disagrees with Mr.
Franklin’s assertion that “there is no certainty that the bonded seams would
lie substantially parallel to the absorbent and in the same plane as each other
when packaged.” Ex. 2004 ¶ 61; see Ex. 2017 ¶¶ 41–56.
Mr. Franklin further contends “[i]f the once-folded side panels of
Widlund were folded along the fold line (k) shown in Toyo Figure 5”
(Ex. 2004 ¶ 68), it would “result in the fastening parts being creased” (id.),
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in which case the refastenable seams would not lie in a plane generally
parallel to the plane of the absorbent assembly. According to Mr. Franklin,
“as the fasteners are folded over the absorbent, normal cross direction
manufacturing variation in the placement of the absorbent and fastener
components (+/- 3/16 in) would cause the fastener to be in the fold around
the edge of the absorbent causing a crease in the fastener when the product is
compressed during packaging.” Id. ¶ 47. Alternatively, Mr. Franklin
contends that there would be “a high likelihood that the diaper blank
becomes folded . . . add[ing] bulk to the package” (id. ¶ 66)—and “Toyo
specifically teaches away from increasing thickness” (id. ¶ 67 (citing Ex.
1005 ¶¶ 9, 13)).
In support of his position, Mr. Franklin relies, in large part, on two
annotated versions of Widlund’s Figure 12. The original version of
Widlund’s Figure 12 is reproduced supra in Part II.C.1. The annotated
versions relied on by Mr. Franklin are based on a version of Widlund’s
Figure 12 modified by Petitioner to designate the side panels (cross-
hatching) and the absorbent portion (shading) (Pet. 27). Patent Owner
further modified the figure with hypothetical fold lines, analogous to Toyo’s
fold lines (k), to produce the two annotated versions reproduced below.

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Annotated versions of Widlund’s Figure 12, relied on by Mr. Franklin, are
reproduced above. The annotated versions are based on a version of
Widlund’s Figure 12, initially modified by Petitioner to designate the side
panels (cross-hatching) and the absorbent portion (shading) (Pet. 27). Patent
Owner further modified the figure with hypothetical fold lines, analogous to
Toyo’s fold lines (k), to produce the two annotated versions reproduced
above (see Ex. 2004 ¶¶ 66, 68; PO Resp. 27, 28).
Again, Petitioner argues that Mr. Franklin’s conclusions are based a
faulty premise (Pet. Reply 9). We agree, and credit the testimony of
Petitioner’s witness, Mr. Gardner, on this point.
Mr. Gardner asserts that Mr. Franklin’s conclusion that Widlund’s
diaper could not be folded in the manner taught by Toyo without either
creasing the fastener elements, or folding the absorbent assembly (which
Toyo teaches is undesirable), rests on an assumption that Figure 12 is drawn
to scale. Mr. Gardner asserts that there is nothing in Widlund to indicate
that Figure 12 is drawn to scale (Ex. 1017 ¶ 70), and notes that Mr. Franklin
acknowledged on cross-examination that Figure 12 is not drawn to scale (id.
(citing Ex. 1016, 194:11–16, 200:24–204:8)). Essentially, Mr. Gardner’s
position is that there is inadequate basis for Mr. Franklin’s conclusion that
“there is not enough room between the fasteners and absorbent assembly
(which is not even shown) in Figure 12 of Widlund to fold the side panels in
accordance with Figure 2 of Toyo.” Ex. 1017 ¶ 86. Moreover, Mr. Gardner
points out that Mr. Franklin did not consider whether the side panels in any
other figure of Widlund, for example, Figure 5 (reproduced supra in Part
II.C.1), “could be folded as shown in Figure 2 of Toyo”—that is, folded
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between, but not through, the absorbent assembly and the side seams.
Ex. 1017 ¶ 85 (citing Ex. 1016, 232:22–234:12, 266:5–12).
It is within our discretion to assign the appropriate weight to
testimony offered by the witnesses. See, e.g., Yorkey v. Diab, 601 F.3d
1279, 1284 (Fed. Cir. 2010) (holding the Board has discretion to give more
weight to one item of evidence over another “unless no reasonable trier of
fact could have done so”); In re Am. Acad. Of Sci. Tech Ctr., 367 F3d 1359,
1368 (Fed. Cir. 2004) (“[T]he Board is entitled to weigh the declarations and
conclude that the lack of factual corroboration warrants discounting the
opinions expressed in the declarations.”).
Having weighed the testimony and supporting evidence of Patent
Owner’s witness, Mr. Franklin, and Petitioner’s witness, Mr. Gardner, we
find Mr. Gardner’s testimony more compelling, and are persuaded, by a
preponderance of the evidence, that the disposable garment of claim 15
would have been unpatentable over the combined teachings of Widlund and
Toyo.
Claim 16
Claim 16 depends from claim 15 and recites “the first back side panel
being folded twice and the first front side panel being folded once.”
Patent Owner contends that claim 16 is “patentable over the
combination of Widlund in view of Toyo for at least the same reasons as
claim 15 and for the additional features not set forth therein.” PO Resp. 32.
Nevertheless, Petitioner asserts “as shown . . . in Figure 12 of
Widlund, the back side panels are folded over” before the refastenable seams
are fastened, “and thus, [the back side panels] include the ‘first’ fold of
Claim 16.” Pet. 29. Petitioner asserts that folding the side panels of
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Widlund’s training pants over the absorbent assembly in preparation for
packaging, as instructed by Toyo, will meet the additional limitations of
claim 16, as “the front side panels will have a ‘first’ fold and the back side
panel will have a ‘second’ fold located near the absorbent chassis.” Id.
Having reviewed Figure 12 of Widlund, together with the description
of Figure 12 (see Ex. 1003, 15:6–15), we are satisfied that Petitioner has
shown, by a preponderance of the evidence, that folding the side panels of
Widlund’s training pants over the absorbent assembly in preparation for
packaging, in the manner disclosed by Toyo, would result in “the first back
side panel being folded twice and the first front side panel being folded
once,” as required by claim 16.
Claims 17–20 and 22
Claims 17–20 and 22 depend directly or indirectly from claim 15.
Petitioner asserts, and Patent Owner does not dispute, that “the refastenable
training pant of Widlund has all of the elements of the absorbent garment of
Claims 15–20 and 22, with the exception that the side panels are not folded
over the absorbent assembly.” Pet. 27 (footnote omitted).
Specifically, Petitioner asserts that Widlund discloses that each of the
first and second resilient fastening components may comprise a hook
component secured to one of the first and second front side panels, as
required by claims 17 and 18, respectively. Pet. 32 (citing Ex. 1003, 14:27–
15:22; Figs. 11, 12). Similarly, Widlund discloses that each of the first and
second resilient fastening components may comprise a loop material secured
to one of the first and second back side panels, as required by claims 19 and
20, respectively. Id. With respect to claim 22, Petitioner asserts that Toyo
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discloses storing folded disposable absorbent garments in a packing bag and,
thus, forms a package. Pet. 33 (citing Ex. 1005 ¶¶ 1, 17, 18; Fig. 7).
We have reviewed the evidence cited by Petitioner and are satisfied
that Petitioner has established, by a preponderance of the evidence, that all
of the elements recited in the dependent claims are disclosed by the cited
prior art, and that Claims 17–20 and 22 would have been obvious over
Widlund and Toyo for the reasons discussed above in connection with claim
15.
D. Claim 21—Obviousness over Widlund, Toyo, and Kuske
Claim 21 depends from claim 15, and recites that “the outer cover [of
the garment] includes a graphic located in the front region of the chassis.”
Kuske discloses a child’s disposable absorbent training pant with
various graphic elements disposed on the front “so as to convey an
aesthetically and/or functionally pleasing appearance to the user and
caregiver.” Ex. 1007, 4:1–8, 5:1–15; Figs. 1, 2.
Petitioner asserts that “it would have been obvious to include
[Kuske’s] graphic . . . on the front of the chassis of the children’s training
pant of Widlund, as folded in the manner taught in Figure 2 of Toyo”
(Pet. 59), as Kuske discloses the desirability of including graphics on
children’s training pants.
Patent Owner contends that claim 21 is “patentable based on its
dependency on claim 15, which is patentable over the cited references.” PO
Resp. 32.
We have reviewed the evidence cited by Petitioner and are satisfied
that Petitioner has established, by a preponderance of the evidence, that the
folded garment of claim 15 would have been obvious over Widlund and
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Toyo for the reasons discussed above, and that it would have been obvious
to include Kuske’s graphics on the folded garment as well, as required by
claim 21.
E. Patent Owner’s Motion to Exclude
The Gardner Declaration (Ex. 1017)
Patent Owner contends that portions of the Gardner Declaration are
“outside the permissible scope of the Petitioner’s Reply . . . [and] should be
excluded as irrelevant under Federal Rule of Evidence 402.” Paper 24 (Mot.
to Exclude), 3.
Specifically, Patent Owner seeks to exclude paragraphs 1, 4, 5, 11,
and 116 of the Declaration because “Mr. Gardner’s opinions of the ultimate
issue of obviousness are beyond the scope of the evidence in the original
petition” (id.), and “Mr. Gardner’s testimony is new evidence and there is no
reason he could not have offered this testimony” with the Petition. Id. at 4.
We decline to strike these paragraphs from the record, as we did not
consider or rely on them. Patent Owner’s Motion to Exclude is dismissed
with respect to paragraphs 1, 4, 5, 11, and 116 of the Gardner Declaration.
Patent Owner further contends that paragraph 40 of Mr. Gardner’s
Declaration “seeks to introduce evidence of a district court’s decision on a
patent not at issue in this case” and “should be stricken under Federal Rule
of Evidence 402 as irrelevant.” Id.
We decline to strike paragraph 40 from the record, as we did not
consider or rely on it in any way. Patent Owner’s Motion to Exclude is
dismissed as moot with respect to paragraph 40 of the Gardner Declaration.
Patent Owner further seeks to exclude paragraphs 8, 40, 84, and 87–
89 of Mr. Gardner’s Declaration because they concern “opinions on
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International Patent Publication No. WO 00/37009 to Fletcher” (id.), and
“[t]he Board did not institute review based on the Fletcher patent” (id.).
We decline to strike paragraphs 8, 40, 84, and 87–89 from the record,
as we did not consider or rely on them in any way. Patent Owner’s Motion
to Exclude is dismissed as moot with respect to paragraphs 8, 40, 84, and
87–89 of the Gardner Declaration.
The Fletcher Reference (Ex.1004)
Finally, Patent Owner seeks to exclude Exhibit 1004, as “[t]he Board
did not institute review based on the Fletcher patent” and “Fletcher and all
references to it should be stricken under Federal Rule of Evidence 402 as
irrelevant.” Id. at 4.
We decline to strike Exhibit 1004 from the record, as we did not rely
on it in any way in reaching our decision. Patent Owner’s Motion to
Exclude is dismissed as moot with respect to Exhibit 1004.
III. CONCLUSION
Petitioner has demonstrated, by a preponderance of the evidence, that
claims 15–20 and 22 of the ’876 patent are unpatentable under 35 U.S.C.
§ 103 as obvious over Widlund and Toyo, and that claim 21 is unpatentable
under 35 U.S.C. § 103 as obvious over Widlund , Toyo, and Kuske.
IV. ORDER
Accordingly, it is
ORDERED that claims 15–22 of U.S. Patent No. 8,579,876 B2 are
unpatentable;
FURTHER ORDERED that Patent Owner’s Motion to Exclude is
dismissed; and
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FURTHER ORDERED that, because this is a final written decision,
parties to the proceeding seeking judicial review of the decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

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For PETITIONER:

KENNETH P. GEORGE
BRIAN A. COMACK.
Amster, Rothstein & Ebenstein LLP
kgeorge@arelaw.com
dcomack@arelaw.com

For PATENT OWNER:

JENNIFER E. HOEKEL
B. SCOTT EIDSON
RICHARD BRIDGE
Armstrong Teasdale LLP
jhoekel@armstrongteasdale.com
seidson@ armstrongteasdale.com