Ex Parte Suzuki et al

Board of Patent Appeals and Interferences

Feb 24, 2012

11056275 (B.P.A.I. Feb. 24, 2012)

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.
11/056,275 02/14/2005 Sachiyo Suzuki 2038-371 4547
22429 7590 02/27/2012
LOWE HAUPTMAN HAM & BERNER, LLP
1700 DIAGONAL ROAD
SUITE 300
ALEXANDRIA, VA 22314
EXAMINER
SU, SUSAN SHAN
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
02/27/2012 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 SACHIYO SUZUKI and TOSHIFUMI OTSUBO
__________

Appeal 2011-006427
Application 11/056,275
Technology Center 3700
__________

Before DEMETRA J. MILLS, ERIC GRIMES, and LORA M. GREEN,
Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner‟s rejection of claims 21-23, 28, 31, and 33-40.
1
We have
jurisdiction under 35 U.S.C. § 6(b).

1
Claims 26 and 27 are also pending, but stand withdrawn from
consideration (App. Br. 5).
Appeal 2011-006427
Application 11/056,275

2
STATEMENT OF THE CASE
Claim 21 the only independent claim on appeal, and can be found in
the Claims Appendix to the Appeal Brief.
2

The following ground of rejection is before us for review:
Claims 21-23, 28, 31, and 33-40 stand rejected under 35 U.S.C.
§ 103(a) as being rendered obvious by the combination of Cohen,
3
Hansen,
4

Neveu,
5
and Hoying.
6

We reverse.
ISSUE
Does the preponderance of evidence of record support the Examiner‟s
conclusion that the combination of Cohen, Hansen, Neveu, and Hoying
renders obvious the diaper of independent claim 21?

FINDINGS OF FACT
FF1. The “invention relates to a disposable diaper and more particularly to
a disposable diaper effective to prevent leakage of body fluids” (Spec. 1).
FF2. Figure 1 of the disclosure is reproduced below:

2
All references to the Appeal Brief (App. Br.) are to Appellants‟ Second
Appeal Brief dated September 7, 2010.
3
Cohen et al., US 5,695,487, issued Dec. 9, 1997.
4
Hansen et al., US 6,222,092 B1, issued Apr. 24, 2001.
5
Neveu et al., WO 95/15138, published Jun. 8, 1995.
6
Hoying et al., US 7,172,801 B2, issued Feb. 6, 2007.
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Figure 1 is a partially cutaway plan view of a diaper taught by the
Specification (id. at 6).
FF3. According to the Specification:
The chassis 1a is . . . provided in a vicinity of the lateral
portions 35 of the body fluid absorbent region 34 with the leak-
barrier means 21 comprising a plurality of the strips 22. These
strips 22 each ha[ve] a thickness direction corresponding to a
thickness direction of the nonwoven fabric forming these strips
22, a width direction corresponding to the back-and-forth
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direction Y of the chassis 1a and a length direction which is
orthogonal to these thickness direction and width direction.
Areas of the strips 22 put aside toward one of its longitudinally
opposite end portions is joined to the inner sheet 2 using a
welding technique or appropriate adhesives to define the fixed
portion 23 and the remaining areas extend upward and left free
from the inner sheet 2 to define flexible portions 25. The
flexible portions 25 are freely deformable and come in soft
contact with the wearer‟s skin when the diaper 1 is put on the
wearer. . . . A plurality of the strips 22 extend in the transverse
direction X with the respective flexible portions 25 overlapping
one another but appropriately spaced one from another in the
back-and-forth direction Y of the chassis 1a and form together a
flexible tuft . . . .

(Id. at 10-11.)
FF4. The Examiner relies on Cohen for teaching a disposable absorbent
product, such as a diaper or sanitary napkin (Ans. 4-5).
FF5. Cohen teaches:
The present invention . . . provid[es] a fibrous web having a
length, a width and a thickness, with at least about 50 percent of
the fibers aligned in a direction generally perpendicular to the
length and width of the web. The web defines a plurality of
spaced-apart gaps, each having a top and a bottom, and each of
the gaps extends from one surface of the web at least about 50
percent through the thickness of the web. The density of a
portion of the web defining the bottom of the gap is greater than
the density of a portion of the web defining the top of the gap.
The fibers of which the fibrous web is composed are wettable
by a liquid to which the fibrous web may be exposed.

(Cohen, col. 1, ll. 50-62.)
FF6. According to Cohen:
One embodiment of the fibrous web is a Z-direction liquid
transport medium defining a plurality of generally V-shaped
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troughs, each of which has a bottom portion and a top portion
and is composed of a fibrous web. The fibers of the fibrous
web are significantly oriented in a direction generally extending
from the top portion of each trough to the bottom portion
thereof. In addition, the fibers are wettable by a liquid to which
the medium may be exposed. Moreover, the density of the web
at the bottom of each trough is greater than the density of the
web in the remainder of the trough. Finally, the fibers at the top
portion of each trough are substantially discontinuous from the
fibers at the top portions of adjacent troughs.

(Id. at col. 2, ll. 8-21.)
FF7. Figure 6 of Cohen is reproduced below:

Figure 6 “is a diagrammatic perspective view of a feminine napkin having as
a component thereof the fibrous web . . . .” (id. at col. 2, ll. 60-62).
FF8. Specifically, Cohen teaches that “the fibrous web may be employed
between the absorbent core and the outer cover of an absorbent product,
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such as a sanitary napkin, to aid in the distribution of fluid to the absorbent
core” (id. at col. 2, ll. 40-43).
FF9. The Examiner notes that Cohen does not teach, among other things,
that the plurality of strips form a pair of body fluid barriers (Ans. 6).
FF10. The Examiner finds that Hansen “teaches raised or upstanding strips
of material which improve Z-direction distribution of liquid [and] also form
body fluid barriers” (id.).
FF11. Hansen teaches that
the flow of urine across the inner liner of the garment can be
reduced by providing barriers or impediments to the urine flow.
These impediments are mechanically formed barrier elements,
which in an illustrated embodiment are a plurality of
deformable loops that project from the inner linear surface of
the garment.

(Hansen, col. 2, ll. 55-61.)
FF12. Figures 1 and 2 of Hansen are reproduced below:
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Figure 5 is a top plan of a diaper of Hansen being stretched flat against the
elastic gathers, and Figure 6 is the same diaper contracted along its
longitudinal and transverse axes by the elastic gathers (id. at col. 4, l. 65-col.
5, l. 2).
FF13. According to Hansen, the barrier members are
preformed tendrils . . . formed by redundant folds of liner layer
that are cut into a series of side by side loops. As seen in FIG.
5, the loops 100 are arranged in a plurality of rows across a
portion of the width of liner surface 12. In other embodiments
(not shown), the loops may be arranged randomly across the
surface of liner 12.

(Id. at col. 9, ll. 27-36.)
FF14. The Examiner also finds that Cohen teaches strip material that is
flexible and promotes fluid movement in the Z-direction (Ans. 7).
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FF15. The Examiner concludes that
it would be obvious to one of ordinary skill in the art, if not
already, that the ‟472 [sic, Cohen] strips also form a pair of
fluid barriers, e.g. the laterally outwardmost rows of material
strips as seen in Figure 6, in view of the recognition that such
strips not only include the claimed structure of the strips but
also are raised or upstanding and promote movement of fluid in
the Z-direction and that raised strips of materials
discourage/interfere with/prevent fluid movement in other
directions as well as promote Z-direction fluid movement so as
to define barrier members as taught by [Hansen]. In so doing
the prior art would necessarily and inevitably teach a pair of
body fluid barriers as now claimed in claim 21, e.g. lines 15-23,
and 30.

(Id..)
FF16. The Examiner also notes that Cohen does not teach that the “barrier
strips be directly contactable with a wearer in use, i.e. a property, function or
capability of the strip portions” (id. at 6).
FF17. The Examiner finds that “while [Cohen] shows the fixed portion of
the strips directly attached to a surface other than that contacted by the
wearer, it also teaches the strips may be employed as a component of an
absorbent article such as diapers, incontinent care products, sanitary napkins
to improve fluid distribution in the Z-direction thereof, e.g. are not limited to
a component as shown in Figure 6” (id. at 8).
FF18. The Examiner also cites Hansen “at, e.g., the Figures and portions
cited supra;” Neveu, “the Figures, especially Figure 5, and the first full
paragraph of page 2 and the last paragraph of page 5 of the English
translation;” as well as Hoying, “e.g., the Figures, especially 3, 5 and 11, and
col. 1, lines 22-31, col. 5, lines 20-45, col. 6, lines 1-18, the
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last two lines of col. 7, col. 8, lines 22-26, col. 9, lines 18-21, col. 10, lines
59-62, col. 18, lines 59-61, and the claims” (id. at 8-9).
FF19. Neveu
7
teaches
equipping the standard external protection with one or more
collectors which, like pubic hair, capture the fluids at the point
of flow, but then conversely drain them in a directed manner to
the bottom of the protective pad. These collectors provide
transfer between the body and the absorbent protection, and
optimize the penetration rate of the fluids into the absorbent
protection.

(Neveu, p. 5, last ¶.)
FF20. Neveu teaches that the collector may be a bundle comprising at least
one multistrand fibrous element, or at least one multistrand thread (id. at p.
6).
FF21. Figure 5 of Neveu is reproduced below:

Figure 5 is a cross-section of an embodiment of the invention of Neveu, in
which the loops forming the collector are open (id. at p. 7). As taught by

7
All references to Neveu are to the English translation of FR 2,713,083 A1,
published June 9, 1995.
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Neveu, “the term „open loop‟ refers to a small loop of which the end has
been shaved or cut off, which results in a velvet-type bundle or „tuft‟” (id.).
FF22. Hoying is drawn to:
An absorbent article comprising a topsheet, a backsheet, and an
absorbent core disposed between the topsheet and the
backsheet. . . . The topsheet has a first side and a second side,
the first side being a body-facing side and the second side being
in fluid communication with the absorbent core. The topsheet
also has a first relatively hydrophobic component and a second
relatively hydrophilic component, the relatively hydrophilic
component extending through the relatively hydrophobic
component and being disposed on both of the sides of the
topsheet.

(Hoying, col. 2, ll. 8-20.)
FF23. Figure 3 of Hoying is reproduced below:

Figure 3 is a cross-sectional view of an enlarged part of the web of Hoying
(id. at col. 2, ll. 24-29).
FF24. Hoying teaches:
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One way of describing the structure of web 1 is with respect to
the three-dimensional fiber orientation in the Z-direction, as
shown in FIG. 3, for example. As shown in FIG. 3, at least
three “zones” can be identified, with each zone being identified
with a portion of web 1 in the Z-direction. A lowermost portion
of web 1 designated as zone 1, Z1, extend[s] generally from
lower surface 14 of first precursor web 1 to the upper surface 13
of second precursor web 21 and comprises substantially non-
reoriented fibers of the first and second precursor webs. The
fibers of Z1 are substantially horizontally-oriented with respect
to the CD-MD plane with very little Z-directionality. Zone 2,
Z2, extends generally from the upper surface 13 of second
precursor web 21 to the interior limit of void area 10 and
comprises substantially reoriented fibers that are substantially
vertically-oriented with respect to the CD-MD plane, that is,
fibers in zone Z2 are oriented predominantly in the Z direction
and have very little CD or MD directionality. In Zone 3, Z3,
which comprises the fibers of distal portion 31 of tuft 6, fibers
are again oriented generally horizontally with respect to the
CD-MD plane. Therefore, in one embodiment, web 1 can be
described structurally as a nonwoven web, which in a generally
flat condition defining a plane of the web, the web comprising
tufted regions, the tufted regions having three zones, each zone
characterized by the zone fiber orientation, wherein the first and
third zones comprise fibers having a first orientation
substantially parallel to the plane of the web, and a second zone
intermediate to and joining the first and third zones, the second
zone comprising fibers having second orientation, the second
orientation being substantially orthogonal to the first plane of
the web, that is, having substantially no portions oriented
substantially parallel to the first plane of the web.

(Id. at col. 9, l. 46-col. 10, l. 11)
FF25. According to Hoying:
In one preferred embodiment of web 1 for use as a topsheet on
a disposable article, both precursor webs 20 and 21 are
nonwoven webs, with second precursor web 21 being relatively
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hydrophobic with respect to first precursor web 20 (and,
preferably, the skin or hair of the wearer), and both contribute
fibers to tufts 6 in a relatively layered manner. In such a
topsheet, . . . a large portion, if not all, of the fibers in closest
proximity to the skin of the wearer can be relatively
hydrophobic, such that relatively dry fibers can be in closest
proximity to the skin of the wearer. By having lateral entry to
the voids 10 of tufts 6, however, fluid can contact relatively
hydrophilic fibers of first precursor web 20 and be wicked
through web 1 to components, such as a secondary topsheet or
absorbent core in the absorbent article.

(Id. at col. 10, ll. 12-26.)
FF26. The Examiner thus concludes
to employ the [Cohen] component directly attached to the upper
surface of the chassis which surface is adapted to contact the
wearer in use so that the fixed portion of each strip is directly
connected to such surface whereas the flexible portion of each
strip is free of direct attachment to such surface would be
obvious to one of ordinary [skill] in view of the recognition that
such is a component which improves fluid distribution in the Z-
direction of an absorbent article such as diapers, incontinent
care products and sanitary napkins also when directly connected
to the wearer contact surface as taught by [Hansen], [Neveu]
and [Hoying] and the desire of [Cohen] to provide such
combination of raised strips as a component of an absorbent
article such as diapers, incontinent care products and sanitary
napkins which improves fluid distribution in the Z-direction. It
is further noted that by so doing the placement of the strips with
regard to the locus of liquid insult would be closer, i.e. promote
quicker distribution, which would promote comfort and
aesthetic consideration as desired by [Cohen] . . ., i.e. the prior
art strips would necessarily and inevitably teach barrier strips as
claimed on line 29 and bridging the last two lines of claim 21.

(Ans. 9).
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ANALYSIS
Appellants argue that “[n]one of the applied art disclose or suggest the
claimed barriers, i.e., „a pair of body fluid barriers which are provided along
and in vicinities of said side margins, respectively, so as to extend in said
longitudinal direction, for preventing body fluid, discharged in use between
said barriers, from leaking in the transverse direction beyond the barriers and
out of the diaper‟” (App. Br. 10).
Specifically, Appellants assert “Cohen is not combinable with Hansen
to teach the claimed barriers” (Reply Br. 5). Appellants further assert that
neither Neveu nor Hoying teach a barrier (id.).
We agree. That is, the Examiner has not provided evidence or
scientific reasoning as to why the ordinary artisan would combine the
barriers of Hansen, which are designed to impede the flow of liquids such as
urine, with any of the structures of Cohen, Neveu, and Hoying, such as the
fibrous web of Cohen or Hoying, or the tufted fibrous element of Neveu
which are designed to direct the flow of a liquid from the body into the
absorbent pad. Specifically, as taught by Hansen, the barriers are attached to
the inner barrier sheet, and are not in direct fluid communication with the
moisture absorbent layer, whereas the “tufted” structures of Cohen, Neveu,
and Hoying are all in direct fluid communication with an absorbent core.
Moreover, even if we were to agree with the Examiner that the
ordinary artisan would have combined any of Cohen, Hansen, Neveu, or
Hoying, the Examiner has not explained how that combination would arrive
at the barrier structure as required by independent claim 21. We are thus
compelled to reverse the rejection.
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CONCLUSION OF LAW
We conclude that the preponderance of evidence of record does not
support the Examiner‟s conclusion that the combination of Cohen, Hansen,
Neveu, and Hoying renders obvious the diaper of independent claim 21. We
thus reverse the rejection of claims 21-23, 28, 31, and 33-40 under 35 U.S.C.
§ 103(a) as being rendered obvious by the combination of Cohen, Hansen,
Neveu, and Hoying.

REVERSED

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