Ex Parte Thuren et al

Board of Patent Appeals and Interferences

Jun 22, 2004

09194968 (B.P.A.I. Jun. 22, 2004)

1
The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of the
Board.
Paper No. 35
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte SVANTE THUREN and ROBERT KLING
__________
Appeal No. 2004-0645
Application 09/194,968
___________
HEARD: June 10, 2004
___________
Before FRANKFORT, McQUADE, and NASE, Administrative Patent
Judges.
FRANKFORT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 through 14, all of the claims pending in
this application.
As noted on page 1 of the specification, appellants’
invention relates to absorbent garments of the type which are
fastened around a user’s waist, such as diapers for both
incontinence suffers as well as for baby/infant users, and
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absorbent pants with waist reclosing means in particular for
smaller users. Independent claims 1 and 14 are representative of
the subject matter on appeal and a copy of those claims may be
found in the Appendix to appellants’ brief.
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Buell ‘003 3,860,003 Jan. 14, 1975
Kopp 4,610,682 Sep. 9, 1986
Wilson et al. (Wilson) 4,834,742 May 30, 1989
Buell et al. (Buell ‘092) 5,151,092 Sep. 29, 1992
Bergman et al. (Bergman) 5,624,427 Apr. 29, 1997
Suprise 5,853,405 Dec. 29, 1998
Courtaulds 1 520 740 Aug. 9, 1978
(British Patent)
Claims 1 through 3, 5 and 8 through 10 stand rejected under
35 U.S.C. § 102(b) as being anticipated by Courtaulds.
Claim 4 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Courtaulds in view of Wilson.
Claims 6 and 7 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Courtaulds in view Buell ‘003 and
Suprise.
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Application 09/194,968
1 In formulating this anticipation rejection, the examiner
has also relied upon the disclosures of Buell ‘092 and Kopp to
modify the absorbent garment seen in Figure 9 of Bergman, Buell
‘092 being incorporated by reference into Bergman (col. 12, lines
49-51) and Kopp being incorporated by reference into Buell ‘092
(col. 25, lines 42-48).
3
Claims 1 through 14 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Bergman.1
Rather than reiterate the examiner's full commentary
concerning the above-noted rejections and the conflicting
viewpoints advanced by the examiner and appellants regarding
those rejections, we make reference to the examiner's answer
(Paper No. 28, mailed June 18, 2003) for the reasoning in support
of the rejections, and to appellants’ brief (Paper No. 27, filed
May 7, 2003) and reply brief (Paper No. 29, filed August 13,
2003) for the arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellants’ specification and claims, to
the applied prior art references, and to the respective positions
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Application 09/194,968
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articulated by appellants and the examiner. As a consequence of
our review, we have made the determinations which follow.
Appellants’ independent claims 1 and 14 are each directed to
an absorbent garment of the type generally seen in Figure 1 of
the application and a securement or attachment system for such a
garment including at least two elongate first attachment strip
elements (11, 12, 13) provided in spaced relation on a first
waist portion (5) of the absorbent garment and a second
attachment strip element (14, 15) provided at each side of a
second waist portion (6) of the garment, wherein the first and
second attachment strip elements are adapted to cooperate with
each other for releasable attachment and fitting of the absorbent
garment about a user, and the second attachment strip elements
each have a major length dimension extending generally transverse
to the at least two first attachment strip elements and the major
length of each of the second attachment strip elements is greater
than the distance separating the at least two first attachment
strip elements.
Looking to the examiner's rejection of claims 1 through 3, 5
and 8 through 10 under 35 U.S.C. § 102(b) as being anticipated by
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Courtaulds, we note that the examiner has asserted that this
reference discloses an absorbent garment and attachment system
including a first attachment device in the form of elongate
attachment strips (8, 11) provided in spaced relation on a first
waist portion of the garment and a second attachment device in
the form of strip elements (7) provided at each side of a second
waist portion of the garment, wherein the first (8, 11) and
second (7) attachment strip elements are, in the examiner’s view,
adapted to cooperate with each other for releasable attachment
and the second attachment strip elements (7) each have a major
length dimension extending generally transverse to the first
attachment strip elements (8, 11) and the major length of each of
the second attachment strip elements is greater than the distance
separating the first attachment strip elements adjacent their
transversely inward ends (i.e., the ends of attachment strips 8
and 11 near reference character 14 in Figure 1 of Courtaulds).
The examiner then further asserts that
[s]ince the structure of Courtaulds is identical to that
claimed, there is sufficient factual basis for one to
conclude that the capability set forth on lines 5-6 of such
claimed structure is also inherent in the same structure of
Courtaulds, see MPEP 2112.01 (answer, page 6).
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Like appellants (brief, pages 22-25), we find the examiner’s
position to be untenable since the attachment strips (11) of
Courtaulds absorbent garment are not provided on a first waist
portion of the garment therein, but are instead clearly provided
as part of the crotch part (3) and designed to cooperate with the
complementary attachment strips (12) on the crotch part so as to
allow adjustable fastening of the strips (11, 12) and thus the
leg openings of crotch part (3) about the thighs of a wearer, as
generally depicted in Figure 2 of the patent. Moreover, we share
appellants’ view (brief, pages 25-29) that the strips (7) of
Courtaulds correlated by the examiner to appellants’ claimed
second attachment strip elements do not and can not cooperate for
“releasable attachment” with strips (8) and (11) on the absorbent
garment of Courtaulds correlated by the examiner to appellants’
claimed first attachment strip elements, as is required in
independent claim 1 on appeal, since attachment strips (7, 8 and
11) are disclosed in Courtaulds as each being a hook material
designed to cooperate with a complementary plush pile material to
complete a fastening means for the garment and would thus not be
capable of releasable attachment one to the other.
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In light of the foregoing, we conclude that Courtaulds does
not anticipate the subject matter of appellants’ independent
claim 1 on appeal, or that of claims 2, 3, 5 and 8 through 10
which depend therefrom. Accordingly, the examiner’s rejection of
claims 1 through 3, 5 and 8 through 10 under 35 U.S.C. § 102(b)
based on Courtaulds will not be sustained.
We next look to the examiner’s rejection of claim 4 under
35 U.S.C. § 103(a) as being unpatentable over Courtaulds in view
of Wilson, and that of claims 6 and 7 as being unpatentable over
Courtaulds in view of Buell ‘003 and Suprise. Like appellants
(brief, pages 29-31), even assuming the above-noted prior art
references can be combined in the manner urged by the examiner,
we find that the secondary references to Buell ’003 and Suprise,
considered alone or in combination with each other and
Courtaulds, do not overcome the deficiencies of Courtaulds
expressly discussed above with regard to claim 1 on appeal.
Accordingly, for the same reasons as set forth in our initial
discussions of Courtaulds, the examiner’s rejection of dependent
claim 4 under 35 U.S.C. § 103(a) and of dependent claims 6 and 7
under 35 U.S.C. § 103(a) will not be sustained.
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The last rejection for our review is that of claims 1
through 14 under 35 U.S.C. § 102(b) as being anticipated by
Bergman. For the reasons aptly set forth by appellants on pages
31-42 of their brief, we agree with appellants’ assessment that
Bergman, even with consideration of the patents to Buell ‘092 and
Kopp, does not anticipate the absorbent garment defined by
appellants in claims 1 through 14 on appeal. The examiner’s
apparent position (answer, page 9) that since Bergman
incorporates the teachings of Buell ‘092 and Kopp “the Bergman et
al device could also employ a second fastener device as taught by
Buell and Kopp, i.e. the fastener device 14 could be part of or
attached to at least a portion of the inner surface or topsheet
with the length which is transverse to the first attachment
device being the major length” (emphasis added), is wholly
inappropriate in this anticipation rejection and at best
represents a classic example of hindsight reconstruction based on
selective application of disparate teachings found in a variety
of references, based on appellants’ own disclosure. Thus, we will
not sustain the examiner’s rejection of claims 1 through 14 under
35 U.S.C. § 102(b) based on Bergman.
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Application 09/194,968
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In summary:
a) the decision of the examiner rejecting claims 1 through
3, 5 and 8 through 10 under 35 U.S.C. § 102(b) as being
anticipated by Courtaulds is reversed;
b) the decision of the examiner rejecting claim 4 under
35 U.S.C. § 103(a) as being unpatentable over Courtaulds in view
of Wilson is reversed;
c) the decision of the examiner rejecting claims 6 and 7
under 35 U.S.C. § 103(a) as being unpatentable over Courtaulds in
view of Buell ‘003 and Suprise is reversed; and
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d) the examiner’s decision rejecting claims 1 through 14
under 35 U.S.C. § 102(b) as being anticipated by Bergman is also
reversed.
REVERSED
CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
JOHN P. McQUADE )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JEFFREY V. NASE )
Administrative Patent Judge )
CEF:pgc
Appeal No. 2004-0645
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