Ex Parte Lord et alDownload PDFPatent Trial and Appeal BoardJan 18, 201310881017 (P.T.A.B. Jan. 18, 2013) Copy Citation 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. 10/881,017 06/30/2004 Patrick Robert Lord KCX-846 (19872) 9618 7590 01/18/2013 Dority & Manning, P.A. P.O. Box 1449 Greenville, SC 29601 EXAMINER ANDERSON, CATHARINE L ART UNIT PAPER NUMBER 3764 MAIL DATE DELIVERY MODE 01/18/2013 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 PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte PATRICK ROBERT LORD, ADRIENNE NICOLE HENGELS, PALANI RAJ WALLAJAPET, CATHERINE MARGUERITE HANCOCK-COOKE, and DANIEL LEE ELLINGSON ____________________ Appeal 2010-007053 Application 10/881,017 Technology Center 3700 ____________________ Before: JENNIFER D. BAHR, CHARLES N. GREENHUT, and WILLIAM V. SAINDON, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-007053 Application 10/881,017 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1- 39. App. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. The claims are directed to an absorbent article having a waist region and corresponding fasteners that have matching stretch properties. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An absorbent article comprising: a chassis including an outer cover comprising an extendable material, a bodyside liner joined to the outer cover in a superimposed relation, the bodyside liner also comprising an extendable material, and an absorbent structure positioned in between the outer cover and the bodyside liner, the chassis including a front region and a back region that define a waist opening therebetween opposite two leg openings; a pair of opposing fastening devices associated with a pair of corresponding elastic side panels, the elastic side panels being joined to opposing longitudinal edges of the chassis adjacent to the waist opening, the fastening devices for securing the article around the waist of a wearer; and wherein the absorbent article defines an elastic waist region that is generally aligned with the elastic side panels, the waist region having an elongation that is within 25% of the elongation of the elastic side panels when the waist region and the side panels are placed under a lateral force ranging from about 300 g to about 700 g, the waist region having a different elastic modulus than the elastic side panels and wherein the elastic side panels and the waist region each have an elongation of at least 10% when placed under a lateral force of 500 g. Appeal 2010-007053 Application 10/881,017 3 REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Roe US 6,325,787 Dec. 4, 2001 Matsuda US 2005/0107764 A1 May 19, 2005 REJECTIONS Claims 1-4, 6-25, and 28-39 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Matsuda. Ans. 3. Claims 5, 26 and 27 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Matsuda and Roe. Ans. 4. OPINION Regarding each of the independent claims involved in this appeal, Appellants dispute the Examiner’s finding that Matsuda’s absorbent article comprises a pair of elastic side panels 82 and an elastic waist region 80, as shown in figure 2. The elastic waist region 82 and elastic side panels 80 each have a elongation of greater than 10% under a force of 5 N (-500g), as disclosed in paragraph [0049], and since the elongation of the waist region and side panels are the same, they are within 25%, and within 5%, of each other. Ans. 3; see App. Br. 5-6. While the Examiner uses reference numerals 80 and 82 interchangeably, presumably the Examiner intended to refer to the side panels 82 having width 142 as the recited “side panels” and the central panel 80 therebetween as the recited “waist region.” See Matsuda p. 3, para. [0032]; p. 6, para. [0047]; fig. 10. Paragraph [0049] of Matsuda cited by the Appeal 2010-007053 Application 10/881,017 4 Examiner discusses the stress of the various materials generated when subjected to a 150% elongation. Without further explanation the Examiner concludes that when forces having magnitudes in the range of those generated stresses are applied to Matsuda’s central and side panels 80, 82, their elongation will be the same, and thus within 25% of each other. Ans. 3. Appellants’ Specification expressly defines the elongation properties recited in the claims by reference to a specific procedure that may be used to determine if articles have stretch properties within the scope of the present invention. See Spec. 26-27; figs. 6 and 7. We are mindful that a prior art structure may possess the recited properties emphasized above, and measured according to the Specification, regardless of whether those properties or testing methods are expressly described in the prior art. However, in order for us to provide any meaningful review of the Examiner’s determination in this regard, the Examiner must provide some evidence or technical reasoning to demonstrate a sound basis for the belief that such a property is, in fact, an inherent characteristic of the prior art. See In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990). Both the definition in the Specification and the language of the claims make it clear that “elongation” refers to a percentage. It is not clear if the elongation of 150% discussed by Matsuda refers to a material property when assembled or unassembled and the Examiner does not specify if it is this elongation which the Examiner believes Matsuda’s central and side portions would undergo if subjected to the recited load. Since Matsuda discusses a range of values for the stresses, even if loads of the same magnitude were to produce a comparable elongation, it does not necessarily follow that a particular load within that range will result in the same elongation of both the central and side panels as the Examiner seems to suggest. The relative Appeal 2010-007053 Application 10/881,017 5 elongation of the panels once assembled in series (Matsuda figs. 2, 10, 17) would seem to be dependent not only upon the material, but upon the size and constraints of the panels. None of these factors are discussed by the Examiner. Thus, it is unclear why the Examiner believes that Matsuda’s central panel 80 and side panels 82 would exhibit the same percentage elongation under the recited load. Since the Examiner fails to provide evidence or reasoning to support this position we are forced to conclude the Examiner improperly relied upon speculative assumptions in judging patentability. Accordingly, we are constrained to reverse the Examiner’s rejection. DECISION The Examiner’s rejections are reversed. REVERSED mls Copy with citationCopy as parenthetical citation