THE PROCTER & GAMBLE COMPANY

Patent Trials and Appeals Board

Jul 2, 2021

2021000392 (P.T.A.B. Jul. 2, 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.
13/717,847 12/18/2012 Mariangela CAPUTI CM3719Q 3942
27752 7590 07/02/2021
THE PROCTER & GAMBLE COMPANY
GLOBAL IP SERVICES
CENTRAL BUILDING, C9
ONE PROCTER AND GAMBLE PLAZA
CINCINNATI, OH 45202
EXAMINER
KIDWELL, MICHELE M
ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
07/02/2021 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):
centraldocket.im@pg.com
mayer.jk@pg.com
pair_pg@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARIANGELA CAPUTI, REMO BELLUCII,
LUIGIA D'ERCOLE, FEDERICA DENTI, LILIANA DELGADO, and
VANESSA SILVA SEGARRA
Appeal 2021-000392
Application 13/717,847
Technology Center 3700
Before JILL D. HILL, LEE L. STEPINA, and ARTHUR M. PESLAK,
Administrative Patent Judges.
Opinion for the Board filed by Administrative Patent Judge Hill.
Opinion Dissenting filed by Administrative Patent Judge Stepina.
HILL, Administrative Patent Judge.
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Application 13/717,847

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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 1–8. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
BACKGROUND
Appellant’s invention relates to an absorbent article comprising a
fragrance or odor control composition. Claims 1, 7, and 8 are independent.
Claim 1, reproduced below, is illustrative of the claimed subject matter.
Certain limitations are italicized for emphasis.
1. An absorbent article selected from a sanitary napkin, an
incontinence pad and a pantyliner, having a body-facing surface
and a garment-facing surface, a central portion and a pair of
flanking portions disposed outboard of the central portion, said
absorbent article comprising:
a topsheet layer;
a backsheet layer;
a plurality of wings;
one or more intermediate layers enclosed between said
topsheet and said backsheet
a fastening adhesive applied on said garment facing
surface and on each of said plurality of wings;
a liquid fragrance or odor control composition applied on
or within a layer between the topsheet layer and the backsheet
layer, the liquid fragrance or odor control composition being
disposed in the central portion of the absorbent article, wherein

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 The Procter &
Gamble Company. Appeal Br. 1.
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the liquid fragrance or odor control composition is applied in an
amount of between 4 mg to 100 mg for sanitary napkin or in an
amount of between 30 mg to 300 mg for an incontinence pad
wherein the liquid fragrance or odor control composition is
applied as a plurality of stripes;
wherein said fastening adhesive and said liquid fragrance
or odor control composition are applied in patterns which do
not overlap for more than 3% of the total surface of the
backsheet when the absorbent article is in a flattened
configuration and said patterns are seen along a direction
perpendicular to said body facing and garment facing surfaces
of the article, wherein the central portion extends a full length
of the absorbent article, and wherein, except for the central
portion, the fastening adhesive is uniformly distributed on the
backsheet and on each of the plurality of wings.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Perring US 2007/0105747 A1 May 10, 2007
Albino US 2008/0033381 A1 Feb. 7, 2008
Flugge-Berendes US 2008/0085290 A1 Apr. 10, 2008

REJECTIONS
I. Claims 1–5, 7, and 8 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Albino and Perring.
II. Claim 6 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Albino, Perring, and Flugge-Berendes.
ANALYSIS
Rejection I; Obviousness – Albino and Perring
The Examiner finds that Albino discloses each of the limitations of
claim 1, including a liquid fragrance or odor control composition applied as
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a plurality of stripes, and fastening adhesive that is uniformly distributed on
the backsheet and on each of a plurality of wings, but does not explicitly
disclose applying liquid fragrance or an odor control composition in the
recited amount. Final Act. 3–4. The Examiner finds that Perring discloses
applying liquid fragrance or an odor control composition in the recited
amount. Id. at 5. The Examiner concludes that it would have been obvious
to apply fragrance in Albino in the amounts taught by Perring as an amount
that is “typically present,” in order to “obtain the desired effect and/or that
the amounts can be readily determined by experiment.” Id. (citing Perring
¶ 51).
Stripes
Appellant disagrees with the Examiner’s finding that element 15 of
Albino includes stripes. Appeal Br. 4. Appellant’s entire argument on this
point is reproduced below.
none of Figures 1–4 of Albino teach a plurality of stripes for the
fragrance means 15. At best, in Figure 3 shows two portions of
an article which comprise the fragrance means 15. However,
there are no figures which teach a “liquid fragrance or odor
control composition ... applied as a plurality of stripes,” as is
recited, in claims 1, 7, and 8.
Appeal Br. 4.
The Examiner responds that Albino’s Figures 1 and 4 show a plurality
of stripes. Ans. 11. According to the Examiner, because the term “stripe” is
not defined, the plain and ordinary meaning is “a strip, or long narrow piece
of anything.” Id. (citing https://www.dictionary.com/browse/stripe, accessed
Aug. 12, 2020). This meaning is consistent with the use of the term in
Appellant’s Specification and specifically Figure 3.
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Appellant’s argument does not apprise us of Examiner error. More
specifically, Appellant’s argument does not explain why the Examiner’s
findings are in error. Nor does Appellant dispute the Examiner’s definition
of stripe, or provide an alternative definition. We agree with the Examiner
that at least Figure 1 of Albino, reproduced below, depicts a long narrow
piece of fragrance, consistent with the Examiner’s offered definition.

Figure 1 shows a sanitary towel with a fragrance means according to a
first embodiment, seen from the side which is intended to face away from
the user during use. Albino ¶ 25. In Figure 1, the fragrance means of
Albino is denoted by reference numeral 15. Although fragrance means 15 in
Figure 1 of Albino appears somewhat curved, it is still long (extending over
substantially the entire width of the article) and narrow (present only in area
14). Thus, the Examiner has established adequately that Albino discloses a
“stripe” consistent with the Examiner’s definition, which is reasonable and
consistent with the Specification.
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Notwithstanding that we agree with the Examiner’s findings, the
predecessor to our reviewing court has held that changes in shape are
obvious absent evidence that a particular shape is significant. In re Dailey,
357 F.2d 669 (CCPA 1966) (The court held that the configuration of the
claimed disposable plastic nursing container was a matter of choice which a
person of ordinary skill in the art would have found obvious absent
persuasive evidence that the particular configuration of the claimed
container was significant.). Here, Appellant’s Specification discloses that
the fragrance or odor control composition is applied “with any possible
application pattern,” which includes “stripes, circles, dots, drops, geometric
figures, stars, decorative figures, irregular shapes, and the like.” Spec.,
14:1–4. Appellant’s Specification sets forth no significance to a stripe shape
in particular.
Uniform Distribution
Appellant also disagrees with the Examiner’s finding that adhesive
element 13 of Albino is “uniformly distributed.” Appeal Br. 5. Appellant’s
entire argument on this point is reproduced below.
Albino teaches an adhesive fastening element 13. In FIGS. 3
and 4, Albino teaches two longitudinal strips of adhesive and
one large strip of adhesive, respectively. Neither of FIGS. 3 nor
4 of Albino teach, “wherein, except for the central portion, the
fastening adhesive is uniformly distributed on the backsheet
and on each of the plurality of wings,” as is recited, in part, in
claims 1, 7, and 8.
Appeal Br. 5.
In response to this argument, the Examiner notes that Appellant’s
Specification does not define the term “uniform.” Ans. 12. The Examiner
provides a plain meaning of the term “uniform,” which is “identical; alike or
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like.” Id. (citing https://www.dictionary.com/browse/uniform, accessed
Aug. 12, 2020.
Regarding the meaning of “uniformly distributed,” Appellant’s
Specification states only that “[i]n FIG. 3 the dotted areas represents the
areas where the fastening adhesive is uniformly distributed . . . .” Spec.
18:19–22. Appellant’s Figure 3 is reproduced below.

FIG. 3 shows “an absorbent article wherein the fastening adhesive and the
liquid fragrance or odor control composition are applied in patterns which do
not overlap at ail and wherein these patterns are represented as projected
onto the garment facing surface of the article.”
Given the meaning of the term “uniform” as including “alike,” and
considering Appellant’s description of Figure 3, a skilled artisan would
understand “uniformly distributed” to include a distribution where there is as
much adhesive on one side of the article as there is on the other.
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The Examiner contends that Albino’s adhesive is uniformly
distributed because it is provided (1) as strips 13 located “on left and right
portions of the backsheet” in Figure 3, and (2) as strips 20 provided “on both
side flaps (18, 19) and on the backsheet” in Figure 4. Ans. 12. The
Examiner continues that Albino’s adhesive strips are alike because, inter
alia, “they are all on an underlying (i.e. backsheet) portion of the article,”
and “are all in the form of strips.” Id.
The Examiner’s finding that Albino’s adhesive meet the uniformly
distributed limitation because it is located “on left and right portions of the
back sheet” is consistent with our construction of “uniformly distributed” as
a distribution where there is as much adhesive on one side of the article as
there is on the other.
Appellant’s argument does not explain why the Examiner’s finding
that Albino’s adhesive strips 13 are uniformly distributed is in error.

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Figures 3 and 4 of Albino respectively depict adhesive fastening
elements 13 and 20. Id. ¶¶ 52, 56. Adhesive elements 13 are long strands
that extend along the sides of the device, and adhesive elements 20 are short
strands that are on side flaps (wings) 18, 19. We agree with the Examiner
that adhesive fastening elements 13, 20 are alike because they are
symmetrically distributed on the backsheet along the longitudinal axis of the
device as strands. Thus, the Examiner has established adequately that
Albino discloses a “uniform” distribution of adhesive consistent with the
Examiner’s definition, which is reasonable and consistent with the
Specification. Accordingly, we sustain the rejection of claim 1, and claims
2–5 depending therefrom, which Appellant does not argue separately. See
Appeal Br. 4–5. Appellant argues independent claims 7 and 8 together with
claim 1, and we sustain the rejection of claims 7 and 8 for the same reasons.
See id.

Rejection II; Obviousness Albino, Perring, Flugge-Berendes
Claim 6 depends from claim 1. Appeal Br. 10 (Claims App.).
Appellant’s argument for claim 6 is that the additional disclosure of
“Flugge-Berendes regarding claim 6 does not overcome the deficiencies of
the Albino reference or the suggested combination of Albino and Perring.”
Appeal Br. 5–6. For the reasons set forth above, we do not agree that the
Examiner’s rejection based on Albino and Perring is deficient.
In the Reply Brief, Appellant argues for the first time that because
“Flugge-Berendes teaches an almost infinite number of components and
combinations … one of ordinary skill would not arrive at the present
invention of claim 6 as a matter of course but rather only via serendipity.”
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Reply Br. 2–3. This argument was not raised in the Appeal Brief, is not
responsive to any argument raised in the Examiner’s Answer, and good
cause has not been shown for its late inclusion. See 37 C.F.R. § 41.41(b)(2).
We will not consider this argument because it was not timely raised, and we
have not received the Examiner’s position. For these reasons, we sustain the
rejection of claim 6.
CONCLUSION
The Examiner’s rejections are affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–5, 7, 8 103(a) Albino, Perring 1–5, 7, 8
6 103(a) Albino, Perring,
Flugge-Berendes
6
Overall
Outcome
1–8
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

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STEPINA, Administrative Patent Judge, dissenting
I respectfully disagree with my colleagues that Albino discloses that,
except for the central portion of the absorbent article, its fastening adhesive
is uniformly distributed on the backsheet and on each of the plurality of its
wings.
Appellant’s Specification states, “[i]n Fig. 3 the dotted areas
represent[] the areas where the fastening adhesive is uniformly distributed
while the dashed areas 30 represent the areas wherein the pattern of liquid
fragrance or odor control composition is uniformly applied.” Spec. 18:19–
22 (emphasis added). This language refers to the areas, not the article as a
whole, as being where there is a uniform distribution or application. Thus,
each of areas 30 depicted in Appellant’s Figure 3 has a uniform application
of liquid fragrance. In other words, liquid fragrance is uniformly applied
within each of the four rectangular areas 30 depicted in Appellant’s Figure 3.
Similarly, adhesive is uniformly distributed within each of the two (right and
left) dotted areas depicted in Figure 3.
Consistent with the uniform distribution of fastening adhesive
described on page 18 of Appellant’s Specification, the broadest reasonable
interpretation of the phrase “the fastening adhesive is uniformly distributed .
. . on each of the plurality of wings” as recited in claim 1 requires uniform
distribution of the fastening adhesive with respect to each of the wings, as
shown in Appellant’s Figure 3, not merely that each side of the central axis
of Albino’s article as a whole (or each wing) has the same amount of
adhesive. In light of Appellant’s Specification and Figure 3, I respectfully
disagree with the majority that adhesive concentrated in a discrete location,
i.e., in a strip or strand, on only a portion of each of Albino’s wings, meets
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the “uniformly distributed” requirement in claim 1, even if each wing may
be allocated the same amount of adhesive and the two discrete locations are
symmetrical. Therefore, I would reverse the Examiner’s rejection.