Ex Parte 6,098,203 et al

Patent Trial and Appeal Board

Mar 25, 2015

90012814 (P.T.A.B. Mar. 25, 2015)

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.
90/012,814 03/22/2013 6,098,203 34297-69 7436
22827 7590 03/25/2015
DORITY & MANNING, P.A.
POST OFFICE BOX 1449
GREENVILLE, SC 29602-1449
EXAMINER
GRAHAM, MATTHEW C
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
03/25/2015 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 KIMBERLY-CLARK WORLDWIDE, INC.
Appellant, Patent Owner
________________

Appeal 2015-000145
Reexamination Control 90/012,814
Patent No. US 6,098,203 C11
Technology Center 3900
________________

Before STEVEN D.A. McCARTHY, DANIEL S. SONG and
BRETT C. MARTIN, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL
1
STATEMENT OF THE CASE 2
The Appellant/Patent Owner appeals under 35 U.S.C. § 134(b) and 35 3
U.S.C. § 306 from a final rejection of unamended claim 1 under 35 U.S.C. 4
§ 102(b) (2002) as being unpatentable over Nomura (US 5,055,103, issued5

1 Issued August 8, 2000 to Gregory John Rajala, Steven Craig Gehling
and Paul Daniel Suke (“the ’203 patent”). The ’203 patent issued from
Appl. 08/959,622, filed October 28, 1997. The ’203 patent has been the
subject of related reexamination proceedings and litigation as detailed on
pages 1–2 of “Appellant’s Brief on Appeal” dated February 19, 2014; and
page 2 of the “Reply Brief” dated August 18, 2014. We draw the Reader’s
attention to the Certificate of Correction dated July 16, 2002, which
substitutes correct renderings of the title page and drawing Figures 1–4.
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Oct. 8, 1991). Claims 2–24 are not subject to reexamination. (“Appellant’s 1
Brief on Appeal” dated February 19, 2014 (“Appeal Brief” or “App. Br.”) at 2
2). We have jurisdiction under § 134(b) and § 306. 3
We AFFIRM. 4
The Examiner’s position is set forth in an Answer mailed June 18, 5
2014 (“Answer” or “Ans.”). In addition to the Appeal Brief, the Patent 6
Owner also relies on a “Reply Brief” dated August 18, 2014 (“Reply Br.”); a 7
Declaration of Brian Rhodes executed October 7, 2013 (“Rhodes 8
Declaration” or “Rhodes Decl.”), Appendix A to the Appeal Brief; and a 9
translation of the first full paragraph of page 3, column 2, of Nomura JP 10
’263 (JP H03-186263 A, publ. Aug. 14, 1991), Appendix B to the Appeal 11
Brief. 12
The ’203 patent teaches providing a garment blank subassembly for a 13
disposable garment including multiple leg elastics adhered sequentially to 14
edges surrounding the leg openings. (’203 patent, col. 6, ll. 42–44; col. 7, ll. 15
27–30; and Fig. 1). The ’203 patent additionally teaches that “using 16
multiple [leg] elastics facilitates placing of the elastics on the outer cover 17
layer 12 while maintaining advantageous production speeds” as the garment 18
blank subassembly moves through a machine in a direction perpendicular to 19
the longitudinal centerline of the blank. (’203 patent, col. 12, l. 64–66). 20
We find that Figure 1 of Nomura depicts a diaper 1. Figure 2 of 21
Nomura is an exploded view of a garment blank subassembly for assembly 22
into the diaper 1. (See Nomura, col. 4, ll. 55–62 (describing how to 23
assemble the garment blank subassembly of Figure 2 into the diaper 1 of 24
Figure 1); see also Ans. 3–4). The garment blank subassembly depicted in 25
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Figure 2 of Nomura includes a topsheet 6 and a backsheet 7. Nomura 1
teaches that “[f]ront and rear sections 10, 11 of the top- and backsheets 6, 7 2
define between the front and rear sections 10, 11 a crotch area 12 having 3
opposite side edges formed with identical notched edges 13, 14, 4
respectively, so as to define the respective leg openings 2” of the diaper 1 5
after assembly. (Nomura, col. 3, ll. 8–13; see also Ans. 3–4). As depicted 6
in Figure 2, the blank also includes elastic means 4 adhered to the backsheet 7
7 along and between the notched edges 14. (Nomura, col. 3, ll. 26–40; see 8
also Ans. 4). Nomura teaches adhering the elastic means 4 to the backsheet 9
7 as the garment blank subassembly moves through a machine in a direction 10
perpendicular to a longitudinal centerline of the blank. (See Nomura, col. 3, 11
l. 59 – col. 4, l. 6 and Fig. 3). 12
13
ISSUES 14
Only those arguments actually made by the Patent Owner have been 15
considered. Arguments that the Patent Owner could have made but chose 16
not to make have not been considered and are deemed to be waived. See 37 17
C.F.R. § 41.67(c)(1)(vii) (2011); In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 18
2011). Two issues are dispositive of this appeal: 19
First, does Nomura describe a garment blank subassembly including: 20
[a] front body portion having first and second front 21
leg edge portions along the leg openings; . . . [a] 22
back body portion having first and second back leg 23
edge portions along the leg openings; . . . [and a] 24
crotch having first and second crotch edge portions 25
on opposing sides thereof along the leg openings, 26
as recited in claim 1? (See App. Br. 14–18; Reply Br. 3–6). 27
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Second, does Nomura describe a garment blank subassembly 1
including a first elastic having first, second and third sections, “the first and 2
third sections of the first elastic being stretched and the second section of the 3
first elastic being substantially relaxed when the garment blank subassembly 4
is laid out flat” as recited in claim 1? (See App. Br. 5–14; Reply Br. 6–12). 5
6
CLAIM 1 7
Claim 1 is reproduced below in revised reformat: 8
1. A garment blank subassembly having a front 9
body portion, a back body portion, and a crotch 10
intermediate of and extending from the front body 11
portion to the back body portion and between a 12
pair of leg openings in a garment to be assembled 13
from the garment blank subassembly, 14
the front body portion having 15
first and second front leg edge 16
portions along the leg openings, 17
a front end opposite the first and 18
second front leg edge portions, and 19
first and second front sides, 20
the back body portion having 21
first and second back leg edge 22
portions along the leg openings, 23
a back end opposite the first and 24
second back leg edge portions, and 25
first and second back sides, 26
the crotch having first and second crotch 27
edge portions on opposing sides thereof 28
along the leg openings, 29
the garment blank subassembly having 30
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a length extending between the front 1
and back ends, 2
a width extending between the first 3
and second sides, and 4
a longitudinal centerline between the 5
first and second front and back sides, 6
each of the first and second back leg edge 7
portions having an angular portion 8
extending generally along a line forming an 9
acute angle with the longitudinal centerline, 10
the garment blank subassembly, when laid 11
out flat, comprising: 12
(a) a first layer, extending from the first end 13
through the crotch to the second end; 14
(b) a first elastic attached to the first layer, and 15
extending from a first locus adjacent the first back 16
side, 17
as a first section of the first elastic, 18
along the width of the garment blank 19
subassembly, toward the front end at 20
an acute angle with the longitudinal 21
centerline and generally following the 22
first back leg edge portion toward the 23
crotch, 24
as a second section of the first elastic 25
across the crotch, and 26
as a third section of the first elastic 27
away from the first end at an acute 28
angle with the longitudinal centerline 29
and generally following the second 30
back leg edge portion, to a second 31
locus adjacent the second back side, 32
the first and third sections of the first elastic 33
being stretched and 34
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the second section of the first elastic being 1
substantially relaxed when the garment 2
blank subassembly is laid out flat, and 3
(c) a second layer, the first and third 4
sections of the first elastic being disposed 5
between the first and second layers. 6
7
OPINION 8
First Issue 9
Claim 1 recites a garment blank subassembly including: 10
[a] front body portion having first and second front 11
leg edge portions along the leg openings; . . . [a] 12
back body portion having first and second back leg 13
edge portions along the leg openings; . . . [and a] 14
crotch having first and second crotch edge portions 15
on opposing sides thereof along the leg openings. 16
The Patent Owner argues that the terms “first and second front leg edge 17
portions;” “first and second back leg edge portions;” and “first and second 18
crotch edge portions” must be read onto distinct and separate edges in the 19
garment blank subassembly. (App. Br. 16–18). Despite the Patent Owner’s 20
assertion to the contrary (see App. Br. 17–18), the garment blank 21
subassembly depicted in Figure 2 of Nomura includes distinct “first and 22
second front leg edge portions;” “first and second back leg edge portions;” 23
and “first and second crotch edge portions” (see Ans. 4 and 7) 24
A claim under reexamination is given its broadest reasonable 25
interpretation consistent with the underlying specification. In re Yamamoto, 26
740 F.2d 1569, 1571–72 (Fed. Cir. 1984). In the absence of an express 27
definition of a claim term in the specification or a clear disclaimer of scope, 28
the claim term is interpreted as broadly as the ordinary usage of the term by 29
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one of ordinary skill in the art reasonably would permit. In re ICON Health 1
& Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007); In re Morris, 127 2
F.3d 1048, 1054 (Fed. Cir. 1997). Properties of preferred embodiments 3
described in the specification that are not recited in a claim do not limit the 4
reasonable scope of the claim. E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 5
1364, 1369 (Fed. Cir. 2003). 6
As explained earlier, we find that Figure 2 of Nomura depicts a blank 7
subassembly for assembling a diaper 1 that includes a front body portion, 8
generally designated by 10; a back body portion, generally designated by 11; 9
and a crotch, generally designated by 12. (See Ans. 3–4). The ’203 patent, 10
of which appealed claim 1 is a part, uses the term “crotch” broadly enough 11
to encompass a portion of a garment blank subassembly that does not 12
include the entire leg opening. (See, e.g., ’203 patent, col. 10, ll. 21–25 and 13
Fig. 2 (depicting the edge 78 of the crotch portion 24 as having a length L7 14
parallel to the longitudinal centerline A–A less than the length of the leg 15
opening 44 when the garment blank subassembly 10 is laid flat)). Reading 16
the term “crotch” in the same manner onto the garment blank subassembly 17
depicted in Figure 2 of Nomura,2 the first and second crotch edge portions 18
defined on opposing sides of the crotch correspond to central portions of the 19
opposed notched edges 14. 20

2 Relying on the passage at column 3, lines 10–13 of Nomura, the
Patent Owner argues that “the crotch area 12 [depicted in Figure 2 of
Nomura] defines the leg openings rather than separate front and back leg
edge portions in the ‘203 patent.” (App. Br. 17). Assuming for purposes of
this appeal that the Patent Owner correctly characterizes Nomura’s usage of
the term “crotch,” we interpret the term recited in the claims in accordance
with its usage in the ’203 patent rather than as used by Nomura.
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This may be illustrated with the following diagram, derived from 1
Figure 2 of Nomura, which appears on page 10 of the “Request for Ex parte 2
Reexamination of U.S. Patent No. 6,098,203” dated March 22, 2013: 3
4
The diagram depicts the backsheet 7 of Nomura’s garment blank 5
subassembly in perspective view. Arrows are added to illustrate the 6
positions of the first and second back leg edge portions, and of the first and 7
second crotch edge portions, along the notched edge 14. As indicated in the 8
diagram, the first and second crotch edge portions do not occupy the 9
entireties of the notched edges 14; instead, both the first body portion and 10
the second body portion include portions of the notched edges 14. 11
Claim 1 recites “first and second front leg edge portions;” “first and 12
second back leg edge portions;” and “first and second crotch edge portions” 13
rather than distinct edges. (See Ans. 7). Claim 1 does not recite that the 14
edge portions are contiguous. One may define first and second front leg 15
edge portions extending from respective sides of the front body portion part 16
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of the way toward the crotch. Depending on their lengths, these first and 1
second front leg edge portions will extend essentially perpendicular to a 2
longitudinal centerline of the garment blank subassembly. One may also 3
define first and second front leg edge portions extending from the crotch 4
portion part of the way toward the sides of the back body portion. These 5
first and second front leg edge portions will include angular portions 6
extending generally along (tangent) lines forming acute angles with the 7
longitudinal centerline. (Ans. 4). As defined in this manner, the first and 8
second front leg edge portions; the first and second back leg edge portions; 9
and the first and second crotch edge portions are distinct portions of the two 10
notched edges 14. 11
The Patent Owner argues that the particular shapes of the edges 12
surrounding the leg openings of the garment blank subassemblies depicted in 13
Figures 1 and 2 of the ’203 patent offer advantages in terms of fit not offered 14
by the notched edges 13, 14 depicted in Figure 2 of Nomura. (See App. Br. 15
17–18). These advantages are not recited in claim 1. The Patent Owner 16
does not persuade us that it has limited the scope of claim 1 to garment blank 17
subassemblies capable of providing these advantages. See Phillips v. AWH 18
Corp., 415 F.3d 1303, 1326–27 (Fed. Cir. 2005) (“The fact that the written 19
description of the ’798 patent sets forth multiple objectives to be served by 20
the baffles recited in the claims confirms that the term ‘baffles’ should not 21
be read restrictively to require that the baffles in each case serve all of the 22
recited functions.”). Therefore, we find that Nomura describes a garment 23
blank subassembly including: 24
[a] front body portion having first and second front 25
leg edge portions along the leg openings; . . . [a] 26
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back body portion having first and second back leg 1
edge portions along the leg openings; . . . [and a] 2
crotch having first and second crotch edge portions 3
on opposing sides thereof along the leg openings, 4
as recited in claim 1. 5
6
Second Issue 7
Claim 1 also recites a garment blank subassembly including a first 8
elastic having first, second and third sections, “the first and third sections of 9
the first elastic being stretched and the second section of the first elastic 10
being substantially relaxed when the garment blank subassembly is laid out 11
flat.” The Patent Owner does not appear to argue that the recitation “the first 12
and third sections of the first elastic being stretched . . . when the garment 13
blank subassembly is laid out flat” distinguishes the subject matter of claim 14
1 from the disclosure of Nomura. We find that the garment blank 15
subassembly depicted in Figure 2 of Nomura includes elastic means 4 with a 16
first elastic in the form of elastic members 4B having a second section 4B2, 17
the second section of the first elastic being “substantially relaxed” when the 18
garment blank subassembly is laid out flat. (See Ans. 5 and 6). 19
As noted earlier, we find that Nomura teaches adhering the elastic 20
means 4 to the backsheet 7 as the backsheet moves through a machine in a 21
direction perpendicular to a longitudinal centerline of the blank. (See 22
Nomura, col. 3, l. 59 – col. 4, l. 6 and Fig. 3). As depicted in Figure 3 of 23
Nomura, the machine applies the elastic members 4B along a path that 24
reciprocates in the direction of the longitudinal centerline of the garment 25
blank subassembly in a sinusoidal fashion as the backsheet 7 moves 26
widthwise through the machine. The internal tension and the elongation 27
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percentage of the elastic members 4B increase as the elastic members are 1
pulled toward the front or back body portion of the backsheet 7. (Nomura, 2
col. 4, ll. 8–23). 3
We find that Nomura teaches adhering the sections of the elastic 4
members 4B within elliptical regions 17′ surrounding the notched edges 14 5
to the backsheet 7. (Cf. Nomura, col. 3, ll. 62–66 (describing the application 6
of the adhesive to the adhesive areas 17′)). The adhesion of the outer 7
sections of the elastic members 4B to the backsheet 7 defines the first and 8
third sections 4B1 (see Nomura, Fig. 2), which are stretched by the action of 9
the adhesive against the internal tension of the elastic members. 10
Nomura also teaches that, after the respective extensions 4A1, 4B1 of 11
the first and second elastic members 4A, 4B are adhered to the backsheet 7: 12
The lengths (the intermediate parallel length 4A2, 13
4B2 in FIG. 2) of the first and second elastic 14
members 4A, 4B extending between each pair of 15
intersections 4C and being closely adjacent to each 16
other are loosened to be brought further close 17
together since the area of the backsheet 7 18
corresponding to these intermediate lengths 4A2, 19
4B2 carries no adhesive. 20
(Nomura, col. 4, ll. 39–45). The Patent Owner correctly points out that the 21
phrase “loosened to be brought further close together” may mean no more 22
than that the elastic sections 4A2, 4B2 are not adhered to the backsheet 7. 23
(See App. Br. 5). Nevertheless, even the Patent Owner’s expert, Brian 24
Rhodes, agrees that the loose, second sections 4A2, 4B2 of the elastic 25
members 4A, 4B will relax and move closer together by some amount 26
(which Mr. Rhodes characterizes as “minor”) once the force used to 27
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reciprocate the elastic members 4A, 4B in the longitudinal direction during 1
application to the backsheet 7 is removed. (See Rhodes Decl., paragraph 7). 2
The Patent Owner argues that the “term ‘substantially relaxed’ [as 3
used in claim 1] refers to a section of an elastic that is under no substantial 4
elongation, is not stretched, and is not under tension.” (Reply Br. 7). As 5
support for this argument, the Patent Owner cites two examples of garment 6
blank subassemblies taught by the written disclosure of the ’203 patent in 7
which sections of elastics extending across the crotch portions are under no 8
tension when the subassemblies are laid out flat (see App. Br. 6–9; Reply Br. 9
7–9); as well as several passages in the ’203 patent contrasting “substantially 10
relaxed” section of elastic with sections that are stretched or under tension 11
(see App. Br. 6). 12
The word “relaxed” itself denotes that a section of elastic is not 13
elongated, stretched or tensioned. To define the term “substantially relaxed” 14
as limited to a section of elastic that is not stretched and is not under tension 15
is to render to modifier “substantially” superfluous. (See Ans. 6). To define 16
the term “substantially relaxed” as referring to a section of elastic that is 17
“under no substantial elongation” is simply circular—it begs the question 18
how substantial is a “substantial elongation.” Because our reviewing court 19
disfavors claim interpretations that fail to give weight to all words in the 20
claim, defining the term “substantially relaxed” as referring to “a section of 21
an elastic that is under no substantial elongation, is not stretched, and is not 22
under tension” is unreasonable. 23
The word “substantially” is a term of degree. The Patent Owner 24
correctly states the law regarding the interpretation of terms of degree: 25
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As stated in Section 2111 of the Manual of Patent 1
Examining Procedure, a claim term is given its 2
broadest reasonable interpretation consistent with 3
the specification. Although it is improper to 4
import claim limitations from the specification, the 5
Manual of Patent Examining Procedure makes 6
clear that when a claim term uses relative 7
terminology one “must look to the specification for 8
the meaning ascribed to that term by the inventor.” 9
. . . The Manual of Patent Examining Procedure 10
states that the Examiner should look to the 11
specification to determine whether the 12
specification provides some standard for 13
measuring terms of degree. It is well settled that 14
the specification can provide examples or 15
teachings ‘that can be used to measure a degree 16
even without a precise numerical measurement.” 17
(App. Br. 6). 18
The word “relaxed” appears with terms of degree in several passages 19
of the ’203 patent. In particular, column 3, line 66 through column 4, line 21 20
of the ’203 patent teaches a disposable garment assembly formed from a 21
garment blank subassembly. In this garment blank subassembly: 22
One or more continuous threads of elastic is 23
disposed between, and secured to, the first and 24
second layers. First and second sections of the 25
elastic extend along the first and second leg 26
openings, thereby to form puckers about the first 27
and second leg openings at edges thereof. A third 28
section of the elastic extends across the crotch in 29
an essentially relaxed state, such that the width of 30
the crotch portion in the assembly corresponds 31
generally to the width of the crotch portion when 32
the crotch portion is laid out flat. 33
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(’203 patent, col. 4, ll. 12–21 (italics added for emphasis)). Although this 1
passage refers to an “essentially relaxed” state rather than a “substantially 2
relaxed” state, the passage provides a standard for measuring whether an 3
elastic member is in either an “essentially relaxed” state or a “substantially 4
relaxed” state. 5
The Patent Owner argues that passages of the ’203 patent, such as 6
those at column 2, lines 43–45; column 3, lines 54–56; column 12, lines 23–7
28 and 44–49; and column 15, lines 35–38, contrast “substantially relaxed” 8
elastic sections with elastic sections that are stretched or under tension. (See 9
App. Br. 6). The first two cited passages, along with the last, do not imply 10
that a “substantially relaxed” elastic section exhibits no elongation, stretch or 11
tension. All that these passages imply is that the “substantially relaxed” 12
elastic sections appearing in the embodiments taught by the ’203 patent 13
exhibit less elongation, stretch or tension than the elastic sections identified 14
as being stretched or under tension. The passages in column 12 describe the 15
particular garment blank subassemblies depicted in Figures 6 and 7, in 16
which elastic threads extending across the crotches of the subassemblies are 17
“substantially relaxed, and under no substantial elongation.” (’203 patent, 18
col. 12, lines 23–28 and 44–49). Setting aside the circularity of defining the 19
term “substantially relaxed” in terms of “substantial elongation,” the Patent 20
Owner offers no persuasive reason why the garment blank subassembly of 21
claim 1 should be limited to the characteristics of the particular elastics 22
discussed in connection with these examples. As such, these passages do 23
not provide a standard for measuring whether an elastic member is in a 24
“substantially relaxed” state. 25
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Therefore, in order to give effect to the modifier “substantially,” we 1
conclude the term “substantially relaxed” means relaxed sufficiently such 2
that the width of the crotch portion in the assembly, that is, in the assembled 3
garment, corresponds generally to the width of the crotch portion when the 4
crotch portion is laid out flat. This interpretation is sufficiently broad to 5
encompass garment blank subassemblies, such as those depicted in Figures 6 6
and 7 of the ’203 patent, in which elastic extending across the crotch is 7
subject to no tension or elongation. On the other hand, claim 1 is not 8
interpreted so that those examples limit the claims. The Patent Owner fails 9
to persuade us that anything in the disclosure of the ’203 patent is 10
inconsistent with this interpretation. 11
Both the crotch of the backsheet 7 depicted in Figure 2 of Nomura and 12
the crotch of the diaper 1 depicted in Figure 1 of Nomura are shown lacking 13
puckering or gathers on the order of the puckering at the edges of the leg 14
openings when assembled. The absence of puckering in the crotch sections 15
depicted in Figures 1 and 2 implies that the widths of the two crotch sections 16
correspond generally to one another, that is, that the second sections 4A2, 17
4B2 of the elastic members 4A, 4B are substantially relaxed. The Examiner 18
correctly finds that the loose second sections 4A2, 4B2 of the elastic 19
members 4A, 4B are depicted as curved even beyond the adhesive areas 17′. 20
(Ans. 6). This fact supports the finding that the second sections 4A2, 4B2 of 21
the elastic members 4A, 4B are substantially relaxed. 22
The Patent Owner points out Brian Rhodes’ testimony that, in his 23
opinion, “the intermediate parallel lengths [that is, second sections 4A2, 4B2 24
of Nomura’s elastic members 4A, 4B] may retract a minor amount during the 25
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process of making the garment [that is, the diaper 1] but will still remain 1
under a great amount of tension, elongation and stretch in the final product.” 2
(Rhodes Decl., para. 7; see App. Br. 13; see also Reply Br. 11–12). Mr. 3
Rhodes’ opinion is based on his understanding regarding the degree to which 4
leg elastics typically are stretched in commercially-available garments so as 5
to cause the topsheet or backsheet of the garment to gather. (See Rhodes 6
Decl., para. 8; see also Reply Br. 11–12). Mr. Rhodes does not cite any 7
evidence or other testimony in support of his understanding. Neither does 8
Mr. Rhodes comment on the degree to which the elastic sections 4A2, 4B2 9
are shortened as they retract from a sinusoidal arc to a chord spanning that 10
arc, other than to refer to any such retraction as “minor.” (Rhodes Decl., 11
para. 7). We find the drawing figures of Nomura, which are drawn to 12
represent the particular diaper 1 described by Nomura and its predecessors, 13
more persuasive as to the effect of the tension in the elastic sections 4A2, 4B2 14
than the testimony of Mr. Rhodes, which is not based on the specific 15
properties of the diaper 1 of Nomura. Velander v. Garner, 348 F.3d 1359, 16
1371 (Fed. Cir. 2003) (“It is within the discretion of the trier of fact to give 17
each item of evidence such weight as it feels appropriate . . . In giving more 18
weight to prior publications than to subsequent conclusory statements by 19
experts, the Board acted well within that discretion.”). 20
We find that Nomura anticipates claim 1. On this basis, we sustain 21
the Examiner’s rejection of these claims. 22
23
DECISION 24
We AFFIRM the Examiner’s decision rejecting claim 1. 25
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Requests for extensions of time in this ex parte reexamination 1
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f) 2
(2011). 3
4
AFFIRMED 5
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1
Patent Owner: 2
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DORITY & MANNING, P.A. 4
POST OFFICE BOX 1449 5
GREENVILLE, SC 29602 6
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Third Party Requester: 8
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AMSTER, ROTHSTEIN & EBENSTEIN LLP 10
90 PARK AVENUE 11
NEW YORK, NY 10016 12
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