Ex Parte Sherrod et al

Board of Patent Appeals and Interferences

Feb 28, 2007

09825609 (B.P.A.I. Feb. 28, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte EARLE HARRY SHERROD, STEPHEN BRADFORD COOK,
DAVID ARTHUR FELL, CORNELIS JACOBUS BOSSELAAR,
COURTNEY M. NELSON, PAUL JOSEPH DATTA and
MARY ANNE BRUEMMER-PRESTLEY
____________

Appeal 2006-1804
Application 09/825,609
Technology Center 3700
____________

Decided: February 28, 2007
____________

Before HUBERT C. LORIN, JENNIFER D. BAHR, and
ROBERT E. NAPPI, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

STATEMENT OF THE CASE
Earle Harry Sherrod et al. (Appellants) appeal under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 1-3, 6, 9-14, and 18-22, the
only claims pending in the application. We have jurisdiction over this
appeal under 35 U.S.C. § 6.
We REVERSE.
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THE INVENTION
Appellants’ invention is an absorbent insert, for use with absorbent
garments, having a body-facing outer surface, a garment-facing outer
surface, at least one absorbent layer, and at least one delay layer adapted to
substantially affect the flow of fluid through the insert. (Specification 1).
The delay layer is positioned between the at least one absorbent layer and
the garment-facing outer surface. Claim 1 is representative of the claimed
subject matter and reads as follows:
1. An absorbent insert for use with an absorbent
garment configured to allow fluid to pass
therethrough to said absorbent garment, the insert
comprising:
a body-facing outer surface and a garment-
facing outer surface, said garment-facing outer
surface being at least partially fluid permeable and
having a pore size that will readily allow the
passage of liquids therethrough;
at least one absorbent layer having a first
primary surface and a second primary surface; and
at least one water insoluble continuous fluid
impermeable delay layer adapted to substantially
affect the flow of fluid passing through the insert,
said at least one continuous fluid impermeable
delay layer having a first primary surface and a
second primary surface;
wherein the surface area of each of said
primary surfaces of said at least one water
insoluble continuous fluid impermeable delay layer
is less than the surface area of each of said primary
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surfaces of at least one of the said at least one
absorbent layers; and
wherein said at least one delay layer is
positioned between said at least one absorbent
layer and said garment-facing outer surface.

THE EVIDENCE
The Examiner relies upon the following as evidence of
unpatentability:
Poulsen US 2,929,379 Mar. 22, 1960
Matsuda US 3,612,054 Oct. 12, 1971
Fujioka1 EP 945 110 A2 Sep. 29, 1999

THE REJECTIONS
Appellants seek review of the Examiner’s rejections under 35 U.S.C.
§ 103(a) of claims 1-3, 6, 9, 12-14, and 18-22 as being unpatentable over
Fujioka in view of Matsuda and claims 10 and 11 as being unpatentable over
Fujioka in view of Matsuda and Poulsen.
The Examiner provides reasons in support of the rejections in the
Examiner's Answer (mailed September 6, 2005). Appellants present
opposing arguments in Appellants’ Brief (filed June 24, 2005) and Reply
Brief (filed October 27, 2005).

1 The Examiner and Appellants refer to this reference as “Unicharm.”
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ISSUE
The first issue in this appeal is whether Fujioka’s area of openings 31a
and the portion of backing layer 31 forming a border surrounding the area of
openings respond to the delay layer and garment-facing outer surface,
respectively, recited in claim 1. This issue was raised by the Examiner in
response to arguments in Appellants’ Brief (Answer 7). Although the
Examiner raised the issue merely in the form of an argument that “could” be
made and opted not to make a new ground of rejection, we address the issue
in the interest of fairness to Appellants.
The main issue presented in this appeal is whether the combined
teachings of Fujioka and Matsuda would have suggested providing a delay
layer in Fujioka’s absorbent article as proposed by the Examiner to arrive at
the claimed invention.

FINDINGS OF FACT
Fujioka discloses an absorbent article for use inside a disposable
diaper (col. 1, ll. 4-5). The absorbent article is adapted to solve the problem
presented by prior art absorbent articles that excess liquid flows to the side
or periphery of the disposable diaper rather than to the center of the diaper,
because the backing layer of the prior art absorbent article is impermeable to
liquid and faces the center of the diaper. The periphery of the conventional
disposable diaper does not sufficiently absorb urine, thereby causing it to
leak to the sides of the diaper (col. 1, ll. 37-45).
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Fujioka solves the above-noted problem by providing an absorbent
article having a backing layer 22 (Fig. 1(C) embodiment) or 31 (Fig. 6(B)
embodiment) made of liquid-impermeable material but provided with
centrally located openings 22a (Fig. 1(C)) or 31a (Fig. 6(B)) to permit
passage of liquid from the absorbent core 23 through the central area of the
backing sheet (col. 4, ll. 30-35; col. 8, l. 19-39). Fujioka’s openings 22a or
31a are situated substantially at the center of the absorbing area (absorbent
core 23) and the area of the openings 22a is smaller than that of the
absorbing area (col. 4, ll. 41-43), while the openings 31a cover the absorbent
core almost entirely (col. 8, ll. 31-32). The absorbent core absorbs a large
portion of the urine but permits any remaining urine exceeding the absorbing
capacity of the core to pass through the openings 22a or 31a in the backing
layer to be absorbed by the absorbent body 4 of the disposable diaper 1.
Upon passing through the openings 22a or 31a, the urine moves mostly to
the center of the absorbent body 4 of the diaper where it is absorbed. The
urine thus will not leak at the sides of the diaper (col. 6, l. 54 to col. 7, l. 10).
The Examiner concedes that Fujioka lacks a continuous fluid
impermeable delay layer, as recited in claim 1 (Answer 4). Independent
claims 10 and 19 also require a continuous fluid impermeable delay layer.
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Matsuda discloses a sanitary napkin provided with one or more barrier
sheets of “completely liquid repellent” material disposed between absorbent
layers 8, 8a (col. 1, ll. 26-35). The barrier sheet is expressly provided to
cause the liquid flowing through the first absorbent layer 8 to spread
laterally and longitudinally along the barrier sheet to utilize the absorbing
capacity of the absorbent layers more effectively (col. 2, ll. 18-26).

PRINCIPLES OF LAW
While it is true that the claims in a patent application are to be given
their broadest reasonable interpretation consistent with the specification
during prosecution of a patent application (see, for example, In re Zletz, 893
F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989)), it is also well
settled that terms in a claim should be construed as those skilled in the art
would construe them (see Specialty Composites v. Cabot Corp., 845 F.2d
981, 986, 6 USPQ2d 1601, 1604 (Fed. Cir. 1988) and In re Johnson, 558
F.2d 1008, 1016, 194 USPQ 187, 194 (CCPA 1977)). Further, the claims do
not stand alone but, rather, are part of a fully integrated written instrument
consisting principally of a specification that concludes with the claims and,
thus, must be read in view of the specification, of which they are a part.
Phillips v. AWH Corp., 415 F.3d 1303, 1315, 75 USPQ2d 1321, 1327 (Fed.
Cir. 2005).
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Where obviousness is based on a combination of prior art references,
the fact finder must determine what the prior art teaches, whether it teaches
away from the claimed invention, and whether it motivates a combination of
the teachings of the references to arrive at the claimed invention. DyStar
Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d
1356, 1363, 80 USPQ2d 1641, 1647 (Fed. Cir. 2006).
A reference teaches away when a person of ordinary skill, upon
examining the reference, would be discouraged from following or would be
led in a direction divergent from the path that was taken by the applicant. In
re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994)

ANALYSIS
We begin by first putting to rest the Examiner’s untenable position
that the delay layer and garment-facing outer surface recited in Appellants’
claim 1 are met by the area of Fujioka’s backing layer 31 having openings
31a and the area of backing layer 31 surrounding the area with openings,
respectively. The skilled artisan, having read Appellants’ disclosure, would
read the “garment-facing outer surface” recited in Appellants’ claim 1 on
Fujioka’s entire backing layer 31, not just the border portion thereof. The
skilled artisan thus would consider the area of backing layer 31 having
openings 31a to be part of the “garment-facing outer surface” and not a
delay layer
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positioned between the garment-facing outer surface and said at least one
absorbent layer, as called for in Appellants’ claim 1. Accordingly, the
theory espoused by the Examiner (Answer 7) that Fujioka discloses all
elements of claim 1, cannot form a reasonable basis upon which to sustain
the Examiner’s rejection.
Fujioka’s objective is to direct any excess liquid not absorbed by the
absorbent core of the absorbent pad insert toward the center of the
disposable diaper, so that the liquid absorbed by the diaper will not leak out
the sides of the diaper. A person of ordinary skill in the art would certainly
have appreciated from Matsuda that the absorbing capacity of Fujioka’s
absorbent core could be more effectively utilized by providing one or more
liquid repellent barrier sheets within the core to spread the flow across the
core. The skilled artisan would also have recognized from Fujioka,
however, that liquid repellent barriers, if placed within Fujioka’s absorbent
core 23 as taught by Matsuda, would direct the liquid toward the periphery
of the absorbent core, thereby encouraging excess liquid to flow outward
from the periphery of the absorbent pad insert and hence toward the
periphery of the diaper. Flow of excess liquid away from the center and
toward the periphery of the diaper is precisely what Fujioka seeks to avoid.
Consequently, one of ordinary skill in the art would have been dissuaded
from providing a barrier
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sheet in Fujioka’s absorbent core regardless of the increased absorbing
capacity that might result from such a modification. While the skilled
artisan would have been interested in increasing the absorptive capacity of
the absorbent core, the combined teachings of Fujioka and Matsuda would
have led the skilled artisan away from utilizing the particular approach of
Matsuda in Fujioka’s pad.
We therefore conclude that the combined teachings of Fujioka and
Matsuda would not have suggested providing a delay layer in Fujioka’s
absorbent article to arrive at the claimed subject matter. We cannot sustain
the Examiner’s rejection of claims 1-3, 6, 9, 12-14, and 18-22 as being
unpatentable over Fujioka in view of Matsuda.
The Examiner’s application of Poulsen does not make up for the
deficiency of the combination of Fujioka and Matsuda discussed above. We
thus cannot sustain the rejection of claims 10 and 11 as being unpatentable
over Fujioka in view of Matsuda and Poulsen.
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SUMMARY
The decision of the Examiner is REVERSED.

REVERSED

HUBERT C. LORIN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JENNIFER D. BAHR ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
ROBERT E. NAPPI )
Administrative Patent Judge )

vsh
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Application 09/825,609

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