Ex Parte SchneiderDownload PDFBoard of Patent Appeals and InterferencesFeb 7, 201210995863 (B.P.A.I. Feb. 7, 2012) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 10/995,863 11/23/2004 Uwe Schneider 9840Q 7119 27752 7590 02/07/2012 THE PROCTER & GAMBLE COMPANY Global Legal Department - IP Sycamore Building - 4th Floor 299 East Sixth Street CINCINNATI, OH 45202 EXAMINER STEPHENS, JACQUELINE F ART UNIT PAPER NUMBER 3761 MAIL DATE DELIVERY MODE 02/07/2012 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 UWE SCHNEIDER __________ Appeal 2010-009779 Application 10/995,863 Technology Center 3700 __________ Before DEMETRA J. MILLS, ERIC GRIMES, and FRANCISCO C. PRATS, Administrative Patent Judges. PRATS, Administrative Patent Judge. DECISION ON APPEAL This appeal under 35 U.S.C. § 134 involves claims to a disposable absorbent article, such as a disposable diaper, that has elastic elements with de-elasticized sections. The Examiner entered a rejection for anticipation. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE The Specification discloses that, while elastic members can give disposable diapers a snugger fit, the elastic can create corrugations in regions of the diaper, such as the waist, where corrugation would be undesirable due to fit and aesthetic reasons (see Spec. 1-3). Appellant’s Appeal 2010-009779 Application 10/995,863 2 invention is thus directed to an absorbent article with elastic members having at least one “heat deactivated zone” (id. at 7) in which the elasticity in a region of the elastic member is removed by applying heat (see id. at 7- 8). Claims 1-3, 5-10, 22, and 23 stand rejected and appealed (App. Br. 1).1 Appellant has not argued the claims separately, so they stand or fall together. See 37 C.F.R. § 41.37(c)(1)(vii). Claim 1 is representative and reads as follows: 1. A disposable absorbent article comprising: a chassis having a first longitudinal edge, a second longitudinal edge, a front waist edge, a rear waist edge, a front waist region, a rear waist region, crotch region disposed therebetween, a first lateral region, a second lateral region, and a middle region between the first and second lateral regions, the chassis further comprising: a topsheet; a backsheet joined to the topsheet; and an absorbent core disposed between the topsheet and the backsheet; a first elastic member joined under tension to the chassis proximate the first longitudinal edge; a first heat deactivated zone overlapping the first elastic member in at least a portion of the front waist region or the rear waist region minimizing corrugations in the front or rear waist region; and an elastomeric first waist member joined under tension to at least a portion of the front waist region of the chassis, the elastomeric first waist member comprising a first waist heat deactivated zone disposed in a portion of the elastomeric first waist member minimizing corrugations in the portion of the elastomeric first waist member, the 1 Appeal Brief entered November 20, 2009. Appeal 2010-009779 Application 10/995,863 3 portion of the elastomeric first waist member being joined directly to the middle region of the chassis. The sole rejection before us for review is the Examiner’s rejection of claims 1-3, 5-10, 22, and 23 are rejected under 35 U.S.C. § 102(b) as anticipated by Pieniak2 (Ans. 3-7).3 DISCUSSION Appellant’s arguments do not persuade us that the Examiner erred in finding that Pieniak anticipates claim 1. Claim 1 recites a disposable absorbent article that has a chassis with, among other features, first and second longitudinal edges, front and rear waist edges, and a crotch region between the edges. Claim 1 also specifies that the article has first and second lateral regions, with a middle region between them. Claim 1 further specifies that the article has a first elastic member joined under tension to the chassis proximate the first longitudinal edge. The first elastic member has a first heat deactivated zone which overlaps the first member in at least a portion of the front or rear waist region, and which minimizes corrugations in the front or rear waist region. Claim 1 specifies further that the article has “an elastomeric first waist member” joined under tension to at least a portion of the front waist region of the chassis. The waist member must have, in one portion, a first heat deactivated zone that minimizes corrugations in that portion of the waist member. The portion of the waist member having the heat deactivated zone 2 U.S. Patent No. 4,450,026 (issued May 22, 1984). 3 The Examiner’s Answer inadvertently referred to claims 22 and 23 as claims 12 and 13. Appeal 2010-009779 Application 10/995,863 4 and reduced corrugations must be joined directly to the middle region of the chassis. Pieniak discloses a disposable diaper that has elastic members adjacent to the longitudinal edges of the chassis, the central portions, 23 and 24, of the longitudinal elastic members being elastic to provide improved fit about baby’s thighs. At both ends of each longitudinal side margins are non-elastic reinforced corners 25, 26, 27, and 28. The elastic means in each of the longitudinal side margins is a relatively wide, thin elastic film ribbon. The film ribbon has been relaxed and its elasticity removed, i.e. “killed”, at both ends of the ribbon to reinforce the corners. . . . . . . The end portions 43 are treated with heat, ultrasonics, or similar energy inducing means, to remove the elasticity of the film in those areas. (Pieniak, col. 4, ll. 18-64; see also Fig. 1.) In Figure 12 of Pieniak the elastic members adjacent to the longitudinal margins are indicated by reference number 168 (id. at Figure 12). Pieniak describes the features of these elastic members as follows: The elastic ribbons 168 are secured in a stretched state in the central portion 172 and the rear portion 174. The elastic may or may not be secured in the front portion 176 [of the diaper]. If the elastic is secured in the front portion then both the front portion 176 and the rear portion 174 of the elastic ribbons are rendered relatively inelastic. The central portion 172 remains elastic and thus gathers the edge of the diaper in the central region. The secured inelastic regions provide reinforced corner portions so that the tape tabs 178 and 180 do not easily tear from the corner portions. (Id. at col. 6, l. 65, through col. 7, l. 7.) Appeal 2010-009779 Application 10/995,863 5 Appellant contends that the Examiner erred in finding that Pieniak anticipates claim 1 because, in concluding that elastic member 168 of Pieniak has the features required of the claimed waist member, the Examiner applied an unreasonable claim interpretation that was improperly inconsistent with the Specification (App. Br. 4-11). Appellant’s arguments do not persuade us, however, that the Examiner applied an unreasonable claim interpretation. Specifically, “while ‘the specification [should be used] to interpret the meaning of a claim,’ courts must not ‘import[ ] limitations from the specification into the claim.’ . . . [I]t is improper to ‘confin[e] the claims to th[e] embodiments’ found in the specification . . . .” In re Trans Texas Holdings Corp., 498 F.3d 1290, 1299 (Fed. Cir. 2007) (quoting Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005), citations omitted, bracketed text in internal quotes in original). As the Federal Circuit has explained, “during patent prosecution when claims can be amended, ambiguities should be recognized, scope and breadth of language explored, and clarification imposed.” In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989). Here, we acknowledge, as Appellant argues, that the Specification identifies the “elastomeric first waist member 301” as an elastomeric member that is located adjacent or proximate to the “front waist edge 334” (Spec. 12; see also Figures 2A, 2B), and that the waist member’s positioning may be contrasted with the “first elastic member 122” which is located proximate to the “first longitudinal edge 114 of the chassis” (Spec. 8; see also Figure 1A). Appeal 2010-009779 Application 10/995,863 6 We also acknowledge that elements 168 of Pieniak are elastic members which, like the longitudinal member of claim 1, are proximate longitudinal edges of the chassis, as opposed to being proximate the front waist edge of the diaper’s chassis (see Pieniak, Figure 12) . However, unlike the first elastic member, which claim 1 expressly states must be joined to the chassis “proximate the first longitudinal edge,” claim 1 simply does not contain any language requiring the elastomeric first waist member to be placed adjacent or proximate to the front waist edge in the manner described in the Specification and depicted in Figure 2B. Moreover, Appellant does not identify any explicit definition in the Specification that limits the elastomeric first waist member to being so located. Cf., In re Bigio, 381 F.3d 1320, 1325 (Fed Cir. 2004) (“[A]bsent claim language carrying a narrow meaning, the PTO should only limit the claim based on the specification . . . when [it] expressly disclaims the broader definition.”). Thus, in seeking to limit claim 1’s elastomeric first waist member to elastic elements situated proximate the front waist edge, and thereby exclude elements 168 of Pieniak, Appellant improperly imports features from the Specification into the claims, in our view. We are therefore not persuaded that the Examiner improperly interpreted claim 1. Appellant argues that, even if elastic member 129 of Pieniak is considered to correspond to Appellant’s waist member, that elastic member “is elastic in the central portion and non-elastic at its two end portions for reinforcement” (App. Br. 11). In other words, Appellant argues, “the elastic Member 129 of Pieniak is configured exactly opposite of the elastomeric first waist member recited in claim 1 of the present application” (id.). Appeal 2010-009779 Application 10/995,863 7 We are not persuaded. Appellant identifies “central portion 130” (Pieniak, col. 6, l. 29; see also Fig. 10) of Pieniak as corresponding to the claimed “middle region” of the chassis (App. Br. 11; see also id. at 8 (reproducing Pieniak Fig. 10)). However, as explained in the Specification and seen in Appellant’s Figure 2B, “middle region 376” includes essentially the entire chassis width, with lateral regions 374 and 378 including only the ear panels 357, 359, 361, and 363 (Spec. 12; see also Figure 2B). Thus, while it might be true that the entire center-most portion of Pieniak’s waist elastic member is elasticized, Appellant’s claimed “middle region” of the chassis encompasses a significantly greater portion of the chassis than just the elasticized segment of Pieniak’s waist member. As seen in Pieniak’s Figure 10, the non-elastic portions 131 and 132 of Pieniak’s waist member 129 cover a significant portion of what corresponds to the “middle region of the chassis” recited in claim 1, when that term is viewed in light of the Specification. Similarly, Figure 4 of Pieniak, repeatedly cited by the Examiner (see Ans. 3-4), shows an elastomeric waist member with de-elasticized sections in a significant portion of the chassis that corresponds to the claimed chassis middle region (Pieniak, Fig. 4; see also id. at col. 5, ll. 8-16). Thus, while it may be true that the center-most portions of the waist members of Pieniak’s diapers are elastic, given the expanse of the claimed “middle region of the chassis,” we are not persuaded that Pieniak fails to describe an elastomeric first waist member that has a heat deactivated zone joined directly to that region of the chassis. Appeal 2010-009779 Application 10/995,863 8 Finally, Appellant argues, even if one were to interpret the waist member of claim 1 as encompassing element 168 of Pieniak, “Pieniak still discloses that the central portion of this element is elastic and the end portions are inelastic to gather the edge of the diaper in the central region and provide reinforced corner portions” (App. Br. 11 (citing Pieniak, col. 7, ll. 4 - 7)). Thus, Appellant contends, the “end portions of this element are clearly disclosed as being bonded in the Edge Portion 131 of the diaper of Pieniak, which is positioned analogously to the Lateral Region 378 of the article depicted in [Appellant’s] figure 2B (i.e., not the middle region recited in claims 1 and 23)” (id.). We are not persuaded. The diaper shown in Figure 12 of Pieniak has lateral tab or flap elements at each of the four corners, as well as lateral tape tabs 178 and 180 (Pieniak, Fig. 12). Pieniak’s flap/tab elements correspond to the elements appearing in the “lateral regions” recited in Appellant’s claims (see elements 374 and 378 in Appellant’s Figure 2B, reproduced at App. Br. 7). In contrast, Pieniak’s elements 168 are located inward of the lateral flap/tab elements, and are attached at their ends to the waist portion of Pieniak’s diaper at a point that corresponds to the chassis middle region 376 shown in Appellant’s Figure 2B (see Pieniak, Fig. 12). Thus, when claim 1 is interpreted in light of the supporting disclosure, Appellant’s Figure 2B in particular, we are not persuaded that elements 168 lack the claimed feature of being bonded directly to the middle region of the chassis. In sum, as Appellant’s arguments do not persuade us that the Examiner erred in maintaining the anticipation rejection of claim 1 over Appeal 2010-009779 Application 10/995,863 9 Pieniak, we affirm the rejection. The remaining claims fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii). TIME PERIOD No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED dm Copy with citationCopy as parenthetical citation