Ex Parte 6260211 et al

Patent Trial and Appeal Board

Mar 25, 2015

95002362 (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.
95/002,362 09/14/2012 6260211 34297-59 1144
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
________________

FIRST QUALITY RETAIL SERVICES, LLC.
Appellee, Requester
v.
Patent of KIMBERLY-CLARK WORLDWIDE, INC.
Appellant, Patent Owner
________________

Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B11
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 Issued July 17, 2001 to Gregory John Rajala, Steven Craig Gehling
and Paul Daniel Suke (“the ’211 patent”). The ’211 patent issued from
Appl. 09/567,189, filed May 9, 2000. The ’211 patent has been the subject
of related reexamination proceedings and litigation as detailed on pages 1–2
of Appellant’s Brief on Appeal dated December 16, 2013; The Related
Proceedings Appendix of Appellant’s Brief on Appeal; and page 2 of the
Rebuttal Brief dated March 28, 2014.
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

2
STATEMENT OF THE CASE 1
The Appellant/Patent Owner appeals under 35 U.S.C. § 134(b) and 35 2
U.S.C. § 315(a) (2002) from a final rejection of claims 1–3 and 5–7 under 35 3
U.S.C. § 102(b) (2002) as being unpatentable over Nomura (US 5,055,103, 4
issued Oct. 8, 1991). Claims 4 and 8–10 are not subject to reexamination. 5
(“Appellant’s Brief on Appeal” dated December 16, 2013 (or “App. Br. 6
PO”) at 2). It does not appear that any claims were added or amended 7
during the reexamination proceeding. (Id.) We have jurisdiction under 8
§ 134(b) and § 315(a). 9
We AFFIRM. 10
The findings and conclusions of the Examiner appear in the “Right of 11
Appeal Notice” mailed September 17, 2013 (“RAN”).2 In addition to its 12
“Appellant’s Brief on Appeal,” the Patent Owner relies on a “Rebuttal 13
Brief” dated March 28, 2014 (“Reb. Br. PO”). The Requester’s position is 14
set forth in the “Requester/Respondent’s Brief” dated January 16, 2014 15
(“Resp. Br. Req’r”). 16
The ’211 patent teaches providing a garment blank subassembly for a 17
disposable garment including multiple leg elastics adhered sequentially to 18
edges surrounding the leg openings. (’211 patent, col. 6, ll. 39–41; col. 7, ll. 19
24–27; and Fig. 1). The ’211 patent additionally teaches that “using 20
multiple [leg] elastics facilitates placing of the elastics on the outer cover 21
layer 12 while maintaining advantageous production speeds” as the garment 22

2 The Examiner’s Answer mailed February 28, 2014 incorporates the
RAN by reference.
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

3
blank subassembly moves through a machine in a direction perpendicular to 1
the longitudinal centerline of the blank. (’211 patent, col. 12, ll. 61–63). 2
We find that Figure 1 of Nomura depicts a diaper 1. Figure 2 of 3
Nomura is an exploded view of a garment blank subassembly for assembly 4
into the diaper 1. (See Nomura, col. 4, ll. 55–62 (describing how to 5
assemble the garment blank subassembly of Figure 2 into the diaper 1 of 6
Figure 1)). The garment blank subassembly depicted in Figure 2 of Nomura 7
includes a topsheet 6 and a backsheet 7. Nomura teaches that “[f]ront and 8
rear sections 10, 11 of the top- and backsheets 6, 7 define between the front 9
and rear sections 10, 11 a crotch area 12 having opposite side edges formed 10
with identical notched edges 13, 14, respectively, so as to define the 11
respective leg openings 2” of the diaper 1 after assembly. (Nomura, col. 3, 12
ll. 8–13). As depicted in Figure 2, the blank also includes elastic means 4 13
adhered to the backsheet 7 along and between the notched edges 14 14
corresponding to leg openings in the assembled diaper 1. (Nomura, col. 3, 15
ll. 26–40). Nomura teaches adhering the elastic means 4 to the backsheet 7 16
as the garment blank subassembly moves through a machine in a direction 17
perpendicular to a longitudinal centerline of the blank. (See Nomura, col. 3, 18
l. 59 – col. 4, l. 6 and Fig. 3). 19
20
ISSUES 21
Claims 1 and 5 are independent, each claiming a garment blank 22
subassembly. Claim 1 is representative of claims 1–3, 5 and 7 for purposes 23
of the rejection on appeal. Claim 6 depends from claim 5. 24
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

4
Only those arguments actually made by the Patent Owner have been 1
considered. Arguments that the Patent Owner could have made but chose 2
not to make have not been considered and are deemed to be waived. See 37 3
C.F.R. § 41.67(c)(1)(vii); In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). 4
Four issues are dispositive of this appeal: 5
First, does Nomura describe a garment blank subassembly including 6
“[a] front body portion having first and second front leg edge portions along 7
the leg openings; . . .[and a] back body portion having first and second back 8
leg edge portions along the leg openings,” as recited in claims 1 and 5? (See 9
App. Br. PO 20–24; Reb. Br. PO 14–16). 10
Second, does Nomura describe a garment blank subassembly 11
including “a first elastic attached to the first layer, . . . a second elastic 12
attached in said garment blank subassembly along the first crotch edge 13
portion and a third elastic attached in said garment blank subassembly along 14
the second crotch edge portion” as recited in claim 1? (See App. Br. PO 6–15
11; Reb. Br. PO 3–6). 16
Third, does Nomura describe a garment blank subassembly including 17
a first elastic, a second elastic, “a third elastic attached in said garment blank 18
subassembly along the first crotch edge portion and a fourth elastic attached 19
in said garment blank subassembly along the second crotch edge portion” as 20
recited in claim 6? (See App. Br. PO 25–26). 21
Fourth, does Nomura describe a garment blank subassembly 22
including a first elastic having first, second and third sections, “the first and 23
third sections of the first elastic being stretched and the second section of the 24
first elastic being substantially relaxed when the garment blank subassembly 25
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

5
is laid out flat” as recited in claim 1?3 (See App. Br. PO 15–20; Reb. Br. PO 1
6–14). 2
3
CLAIM 1 4
Claim 1 is reproduced below in revised reformat: 5
1. A garment blank subassembly having a front 6
body portion, a back body portion, and a crotch 7
intermediate of and extending from the front body 8
portion to the back body portion and between a 9
pair of leg openings in a garment to be assembled 10
from the garment blank subassembly, 11
the front body portion having 12
first and second front leg edge 13
portions along the leg openings, 14
a front end opposite the first and 15
second front leg edge portions, and 16
first and second front sides, 17
the back body portion having 18
first and second back leg edge 19
portions along the leg openings, 20
a back end opposite the first and 21
second back leg edge portions, and 22
first and second back sides, 23
the crotch having first and second crotch 24
edge portions on opposing sides thereof 25
along the leg openings, 26

3 Claim 5 includes a nearly identical limitation: “the first and third
sections of the second elastic being stretched and the second section of the
second elastic being substantially relaxed when the garment blank assembly
is laid out flat.”
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

6
the garment blank subassembly having 1
a length extending between the front 2
and back ends, 3
width extending between the first and 4
second sides, and 5
a longitudinal centerline between the 6
first and second front and back sides, 7
each of the first and second back leg edge 8
portions having an angular portion 9
extending generally along a line forming an 10
acute angle with the longitudinal centerline, 11
the garment blank subassembly, when laid 12
out flat, comprising: 13
(a) a first layer, extending from the first end 14
through the crotch to the second end; 15
(b) a first elastic attached to the first layer, and 16
extending from a first locus adjacent the first 17
backside, 18
as a first section of the first elastic, 19
along the width of the garment blank 20
subassembly, toward the front end at 21
an acute angle with the longitudinal 22
centerline and generally following the 23
first back leg edge portion toward the 24
crotch, 25
as a second section of the first elastic 26
across the crotch, and 27
as a third section of the first elastic 28
away from the first end at an acute 29
angle with the longitudinal centerline 30
and generally following the second 31
back leg edge portion, to a second 32
locus adjacent the second back side, 33
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

7
the first and third sections of the first elastic 1
being stretched and 2
the second section of the first elastic being 3
substantially relaxed when the garment 4
blank subassembly is laid out flat; and 5
(c) a second elastic attached in said garment 6
blank subassembly along the first crotch edge 7
portion and 8
a third elastic attached in said garment blank 9
subassembly along the second crotch edge portion. 10
11
OPINION 12
First Issue 13
Both claim 1 and claim 5 recite a garment blank subassembly 14
including “[a] front body portion having first and second front leg edge 15
portions along the leg openings; . . . [and a] back body portion having first 16
and second back leg edge portions along the leg openings.” Both claims 17
additionally recite “a crotch intermediate of and extending from the front 18
body portion to the back body portion and between [the] pair of leg 19
openings, . . . the crotch having first and second crotch edge portions on 20
opposing sides thereof along the leg openings.” The Patent Owner interprets 21
these recitations as limiting the garment blank subassemblies of claim 1 and 22
claim 5 to subassemblies with “leg openings surrounded by front leg edges 23
and back leg edges that are positioned on opposite ends of crotch edge 24
portions.” (App. Br. PO 23). 25
The Patent Owner argues that the terms “first and second front leg 26
edge portions;” “first and second back leg edge portions;” and “first and 27
second crotch edge portions” must be read onto distinct and separate edges 28
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

8
in the garment blank subassembly. (App. Br. PO 21–23 and 25; Reb. Br. PO 1
14–16). A claim under reexamination is given its broadest reasonable 2
interpretation consistent with the underlying specification. In re Yamamoto, 3
740 F.2d 1569, 1571–72 (Fed. Cir. 1984). In the absence of an express 4
definition of a claim term in the specification or a clear disclaimer of scope, 5
the claim term is interpreted as broadly as the ordinary usage of the term by 6
one of ordinary skill in the art reasonably would permit. In re ICON Health 7
& Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007); In re Morris, 127 8
F.3d 1048, 1054 (Fed. Cir. 1997). Properties of preferred embodiments 9
described in the specification that are not recited in a claim do not limit the 10
reasonable scope of the claim. E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 11
1364, 1369 (Fed. Cir. 2003). 12
Despite the Patent Owner’s assertion to the contrary (see App. Br. PO 13
23–24; Reb. Br. 15–16), the word “edge portions” reasonably may be read 14
on portions of a single, compact edge. (See RAN 3 (“no separate sections 15
have been claimed”)). The fact that the particular embodiments depicted in 16
Figures 1 and 2 of the ’211 patent illustrate separate portions or segments of 17
the edges surrounding the leg openings does not constitute a formal 18
definition or clear disclaimer requiring a narrower reading of the term “edge 19
portions.” The garment blank subassembly depicted in Figure 2 of Nomura 20
includes distinct “first and second front leg edge portions;” and “first and 21
second back leg edge portions.” (See RAN 3). 22
As explained earlier, we find that Figure 2 of Nomura depicts a blank 23
subassembly for assembling a diaper 1 that includes a front body portion, 24
generally designated by 10; a back body portion, generally designated by 11; 25
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

9
and a crotch, generally designated by 12. (See Nomura, col. 3, ll. 8–13). 1
The ’211 patent, of which appealed claim 1 is a part, uses the term “crotch” 2
broadly enough to encompass a portion of a garment blank subassembly that 3
does not include the entire leg opening. (See, e.g., ’211 patent, col. 10, ll. 4
19–23 and Fig. 2 (depicting the edge 78 of the crotch portion 24 as having a 5
length L7 parallel to the longitudinal centerline A–A less than the length of 6
the leg opening 44 when the garment blank subassembly 10 is laid flat)). 7
Reading the term “crotch” in the same manner onto the garment blank 8
subassembly depicted in Figure 2 of Nomura,4 the first and second crotch 9
edge portions defined on opposing sides of the crotch correspond to central 10
portions of the opposed notched edges 14. 11
This may be illustrated with the following diagram, derived from 12
Figure 2 of Nomura, which appears on page 7 of the “Request for Inter 13
partes Reexamination of U.S. Patent No. 6,260,211” dated September 14, 14
2012: 15

4 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 ’211 patent.” (App. Br. PO 23). 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 ’211 patent rather than as used by Nomura.
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

10
1
The diagram depicts the backsheet 7 of Nomura’s garment blank 2
subassembly in perspective view. Arrows are added to illustrate the 3
positions of the first and second back leg edge portions, and of the first and 4
second crotch edge portions, along the notched edge 14. As indicated in the 5
diagram, the first and second crotch edge portions do not occupy the 6
entireties of the notched edges 14; instead, both the first body portion and 7
the second body portion include portions of the notched edges 14. 8
Claims 1 and 5 recite “first and second front leg edge portions;” 9
“first and second back leg edge portions;” and “first and second crotch edge 10
portions” rather than distinct edges. Neither claim recites that the edge 11
portions are contiguous. One may define first and second front leg edge 12
portions extending from respective sides of the front body portion part of the 13
way toward the crotch. Depending on their lengths, these first and second 14
front leg edge portions will extend essentially perpendicular to a longitudinal 15
centerline of the garment blank subassembly. One may also define first and 16
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

11
second front leg edge portions extending from the crotch portion part of the 1
way toward the sides of the back body portion. These first and second front 2
leg edge portions will include angular portions extending generally along 3
(tangent) lines forming acute angles with the longitudinal centerline. (Cf. 4
“Comments by Requester to Patent Owner’s July 29, 2013 Response to 5
Action Closing Prosecution” dated August 28, 2013 (“August 28, 2013, 6
Req’r Comm.”) at 11 (depicting such a tangent line); RAN 3 (adopting the 7
Requester’s comments regarding this argument)). As defined in this 8
manner, the first and second front leg edge portions; the first and second 9
back leg edge portions; and the first and second crotch edge portions are 10
distinct portions of the two 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 ’211 patent offer advantages in terms of fit not offered 14
by the notched edges 14 depicted in Figure 2 of Nomura. (See App. Br. PO 15
23–24). 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.”). (See Resp. Br. Req’r 11). Therefore, we find that 23
Nomura describes a garment blank subassembly including “[a] front body 24
portion having first and second front leg edge portions along the leg 25
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

12
openings; . . . [and a] back body portion having first and second back leg 1
edge portions along the leg openings” as recited in claims 1 and 5. 2
3
Second and Third Issues 4
The garment blank subassembly of claim 1 includes “a first elastic 5
attached to the first layer, . . . a second elastic attached in said garment blank 6
subassembly along the first crotch edge portion and a third elastic attached 7
in said garment blank subassembly along the second crotch edge portion.” 8
The garment blank subassembly of dependent claim 6 includes first and 9
second “elastics” as recited in parent claim 5, along with “a third elastic 10
attached in said garment blank subassembly along the first crotch edge 11
portion and a fourth elastic attached in said garment blank subassembly 12
along the second crotch edge portion.” It is worth noting that, despite the 13
numbering of the elastics in claims 1 and 6, the third elastic recited in claim 14
6 corresponds in position on the garment blank subassembly to the second 15
elastic recited in claim 1; and the fourth elastic recited in claim 6 16
corresponds in position to the third elastic recited in claim 1. The second 17
elastic recited in claim 5 (and thus incorporated into claim 6) has no 18
correspondent recited in claim 1. 19
We find that the garment blank subassembly as depicted in Figure 2 of 20
Nomura includes elastic means 4. The elastic means 4 includes “a plurality 21
of elastic members” 4A positioned on a surface of the front body portion of 22
the backsheet 7 and “a plurality of elastic members” 4B positioned on a 23
surface of the back body portion of the backsheet 7. (See Nomura, col. 3, ll. 24
26–28 and Fig. 2). The elastic members 4B define first and third sections 25
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

13
4B1 along with a second section 4B2. (See Nomura, col. 3, ll. 28–35). 1
Figure 2 depicts the first section 4B1 as extending generally over the width 2
of the blank from a first locus at the outer end of the first back leg edge 3
portion toward the front body portion at an acute angle with the longitudinal 4
centerline. The first section 4B1 generally follows one of the notched edges 5
14 toward the crotch 12. The second section 4B2 extends across the crotch 6
12. Finally, the third section (also labelled 4B1) extends away from the front 7
body portion at an acute angle with the longitudinal centerline. The third 8
section generally follows the edge of the opposite notch opening 14 to a 9
second locus at the outer end of the second back leg edge portion. (See 10
Nomura, col. 3, ll. 26–40 and Fig. 2). The elastic members 4A define first, 11
second and third sections 4A1, 4A2, 4A1 arranged in a mirror image about a 12
line passing through points 4C on the crotch 12 perpendicular to the 13
longitudinal axis of the garment blank subassembly. 14
We also find that Nomura teaches arranging the plurality of first 15
elastic members 4A and the plurality of second elastic members 4B so as “to 16
have their inter-member spacings along the respective divergent sections 17
4A1, 4B1 gradually enlarged from their longitudinally inner ends 4C . . . 18
toward their longitudinally outer ends 4D.” (Nomura, col. 3, ll. 50–58; see 19
also id., col. 2, ll. 28–35). The existence of “inter-member spacings” 20
implies that both the plurality of first elastic members 4A and the plurality of 21
second elastic members 4B include at least two elastic members that are 22
spaced from one another. This finding is consistent with the depiction of the 23
plurality of first elastic members 4A and the plurality of second elastic 24
members 4B in Figure 2 of Nomura. 25
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

14
The Examiner finds that the plurality of elastic members 4B includes 1
elastic members corresponding to the second and third elastics recited in 2
claims 1 as well as the third and fourth elastics recited in claim 6. (RAN 2–3
3). The Examiner provides alternative reasons for making this finding. 4
According to one alternative, the Examiner adopts the Requester’s argument 5
that the terms “first elastic,” “second elastic” and “third elastic” as used in 6
claim 1 do not limit the claim to a garment blank subassembly having three 7
separate “elastics.” (See RAN 2 (“However, as noted by the Third Party 8
Requester in the response of 8/28/2013, a separate third elastic has not been 9
claimed.”); see also Resp. Br. Req’r 4–7; August 28, 2013, Req’r Comm. 3–10
6). Hence, distinct sections of the pluralities of elastic members 4A and 4B 11
constitute the first, second and third elastics of claim 1; and the first, second, 12
third and fourth elastics of claim 6. 13
According to another alternative, the Examiner agrees with the Patent 14
Owner for purposes of argument that the terms first, second and third 15
elastics as used in claim 1; and first, second, third and fourth elastics as used 16
in claim 6, limit the claimed garment blank subassemblies so as to require 17
separate “elastics.” (RAN 3 (“Thus, Nomura teaches a third elastic even 18
using the narrow definition as detailed in the patent at hand.”)). The 19
Examiner observes that the ’211 patent teaches the elastic material of the 20
subassemblies may be “composite.” The Examiner finds that “the third 21
elastic of Numora reads on the claimed subject matter in that [it] is a part of 22
a composite” (RAN 3)—that is, that the first, second and third elastics of 23
claim 1; and the first, second, third and fourth elastics of claim 6, read on 24
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

15
separate elastic members of the pluralities of elastic members 4A and 4B 1
described in Nomura. (See App. Br. PO 8). 2
With respect to the second alternative, the Patent Owner argues that 3
the term “elastic” as used in claims 1 and 7 reads on the plurality of elastic 4
members 4B as a whole and not on any individual elastic member or proper 5
subset of the elastic members 4B. As such, Nomura fails to describe a 6
garment blank subassembly including distinct first, second and third elastics. 7
(See App. Br. 8–11; Reply Br. 4–6). 8
The ordinary usage of the noun “elastic” is sufficiently broad to 9
include both single elastic members and composites of such members. In its 10
broadest sense, it merely refers to a member or to a composite of members 11
that is elastic. Thus, less than all of the individual elastic members making 12
up either the plurality of elastic members 4A or the plurality of elastic 13
members 4B may constitute an “elastic” in it broadest reasonable sense. In 14
this sense, each of the two pluralities of elastic members may be considered 15
either a single elastic or a plurality of elastics within the ordinary meaning of 16
the word. 17
The Patent Owner does not suggest that the noun “elastic” has a 18
meaning within the pertinent art different from its lay meaning. Neither 19
does the Patent Owner identify any formal definition or disclaimer that is 20
persuasive of a usage in the ’211 patent narrower than the ordinary usage. 21
The Patent Owner has not persuaded us that the manner in which the noun 22
“elastic” is used in the written disclosure of the ’211 patent, though 23
consistent with respect to the particular examples discussed in the text or 24
depicted in the drawing, demonstrates an intent to limit the scope of the 25
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

16
noun to those examples. See Phillips at 1323. The Patent Owner’s 1
argument that the written description of the ’211 patent “makes clear that an 2
elastic can refer to one or more threads that extend together over a certain 3
area” (App. Br. PO 8 (italics added for emphasis)) does not persuade us that 4
the noun can only refer collectively to all threads running together over the 5
certain area. 6
In particular, in a passage discussed on page 4 of the Patent Owner’s 7
“Rebuttal Brief,” the ’211 patent states that the “elastic may comprise 8
threads, ribbons, a film or composite. The threads, ribbons, etc., may be 9
multiple and may be applied as a composite.” (’211 patent, col. 11, lines 7–10
9 (italics added for emphasis)). This is language of exemplification, not of 11
exclusion. Although the ’211 patent describes elastics that are composites of 12
multiple elastic members, the written disclosure of the ’211 patent does not 13
limit the term “elastic” in such a way as to exclude single threads or small 14
numbers of threads. Neither does the ’211 patent limit the word “elastics” 15
so as to exclude separate reference to elastics running approximately parallel 16
to one another over their lengths. Hence, the ordinary meaning of the noun 17
“elastic” may apply to a single elastic member within a composite such as 18
the composites depicted in Figures 11 and 12 of the ’211 patent. 19
The Patent Owner points out that the particular configuration of the 20
third and fourth “elastics” taught in the ’211 patent facilitates the application 21
of those elements by a machine running in a direction perpendicular to the 22
longitudinal centerline of the garment blank subassembly. (See App. Br. 23
10–11, citing ’211 patent, col. 13, ll. 10–28). This advantage, however, is 24
not recited in claim 1 or claim 6. The Patent Owner has not offered a 25
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

17
persuasive reason why claim 1 or claim 6 is limited to garment blank 1
subassemblies offering the advantage. See Phillips at 1327. Nevertheless, 2
Nomura also teaches applying the pluralities of elastic members 4A, 4B 3
using a machine that runs in a direction perpendicular to the longitudinal 4
centerline of the garment blank subassembly. (See Nomura, col. 3, l. 59 – 5
col. 4, l. 6 and Fig. 3). While Nomura does not teach applying the elastic 6
members corresponding to the third and fourth elastics in a separate 7
operation, those elastic members could be applied in a separate operation 8
after the elastic members corresponding to the first elastic were applied. 9
Therefore, the Patent Owner’s argument seeking to limit claims 1 and 6 in 10
terms of this method of manufacture is not persuasive. 11
The plurality of elastic members 4B includes at least two elastic 12
members. At least one of these elastic members corresponds to the first 13
elastic recited in claim 1. At least one other elastic member corresponds to 14
the second elastic in that the at least one other elastic member is attached 15
along a portion of its length to the garment blank subassembly along a first 16
crotch edge portion corresponding to one of the notched edges 14. One or 17
more of the plurality of elastic members 4A corresponds to the third elastic 18
in that the one or more elastic members are attached to the garment blank 19
subassembly along a second crotch edge portion corresponding to the other 20
of the notched edges 14. Therefore, Nomura describes a garment blank 21
subassembly including first, second and third elastics recited in claim 1. 22
Similar subsidiary findings support the finding that Nomura describes a 23
garment blank subassembly including first, second, third and fourth elastics 24
are recited in claim 6. 25
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

18
Fourth Issue 1
Each of claim 1 and claim 5 recites a garment blank subassembly 2
including a first elastic having first, second and third sections, “the first and 3
third sections of the first elastic being stretched and the second section of the 4
first elastic being substantially relaxed when the garment blank subassembly 5
is laid out flat.” The Patent Owner does not appear to argue that the 6
recitation “wherein the first and third sections of the first elastic are 7
stretched . . . when the garment blank subassembly is laid out flat” alone 8
distinguishes the subject matter of claim 1 or claim 5 from the disclosure of 9
Nomura. The Examiner correctly finds that the garment blank subassembly 10
depicted in Figure 2 of Nomura includes elastic means 4 with a first elastic 11
in the form of at least one of the plurality of elastic members 4B having a 12
second section 4B2, wherein “the second section of the first elastic [is] 13
substantially relaxed when the garment blank subassembly is laid out flat.” 14
(See RAN 3). 15
As noted earlier, we find that Nomura teaches adhering the elastic 16
means 4 to the backsheet 7 as the backsheet moves through a machine in a 17
direction perpendicular to a longitudinal centerline of the blank. (See 18
Nomura, col. 3, l. 59 – col. 4, l. 6 and Fig. 3). As depicted in Figure 3 of 19
Nomura, the machine applies the elastic members 4B along a path that 20
reciprocates in the direction of the longitudinal centerline of the garment 21
blank subassembly in a sinusoidal fashion as the backsheet 7 moves 22
widthwise through the machine. The internal tension and the elongation 23
percentage of the elastic members 4B increase as the elastic members are 24
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

19
pulled toward the front or back body portion of the backsheet 7. (Nomura, 1
col. 4, ll. 8–23). 2
We find that Nomura teaches adhering the sections of the elastic 3
members 4B within elliptical regions 17′ surrounding the notched edges 14 4
to the backsheet 7. (Cf. Nomura, col. 3, ll. 62–66 (describing the application 5
of the adhesive to the adhesive areas 17′)). The adhesion of the outer 6
sections of the elastic members 4B to the backsheet 7 defines the first and 7
third sections 4B1 (see Nomura, Fig. 2), which are stretched by the action of 8
the adhesive against the internal tension of the elastic members. 9
Nomura also teaches that, after the respective extensions 4A1, 4B1 of 10
the first and second elastic members 4A, 4B are adhered to the backsheet 7: 11
The lengths (the intermediate parallel length 4A2, 12
4B2 in FIG. 2) of the first and second elastic 13
members 4A, 4B extending between each pair of 14
intersections 4C and being closely adjacent to each 15
other are loosened to be brought further close 16
together since the area of the backsheet 7 17
corresponding to these intermediate lengths 4A2, 18
4B2 carries no adhesive. 19
(Nomura, col. 4, ll. 39–45). The Patent Owner correctly points out that the 20
phrase “loosened to be brought further close together” may mean no more 21
than that the elastic sections 4A2, 4B2 are not adhered to the backsheet 7. 22
(See App. Br. PO 19). Nevertheless, a comparison of Figures 2 and 3 of 23
Nomura shows that the loose, second sections 4A2, 4B2 of the elastic 24
members 4A, 4B will relax and move closer together once the force used to 25
reciprocate the elastic members 4A, 4B in the longitudinal direction during 26
application to the backsheet 7 is removed. (See RAN 2; Resp. Br. Req’r 10 27
(quoting App. Br. PO 19)). 28
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

20
The Patent Owner argues that the garment blank subassembly 1
depicted in Figure 2 of Nomura does not satisfy the limitation wherein “the 2
second section of the first elastic [is] substantially relaxed when the garment 3
blank subassembly is laid out flat.” More specifically, the Patent Owner 4
argues that the “term ‘substantially relaxed’ [as used in claim 1] refers to a 5
section of an elastic that is under no substantial elongation, is not stretched, 6
and is not under tension.” (Reb. Br. PO 8). As support for this argument, 7
the Patent Owner cites two examples of garment blank subassemblies taught 8
by the written disclosure of the ’211 patent in which sections of elastics 9
extending across the crotch portions were under no tension when the 10
subassemblies were laid out flat (see App. Br. PO 12–15; Reb. Br. PO 8–11
10); as well as several passages in the ’211 patent contrasting “substantially 12
relaxed” section of elastic with sections that are stretched or under tension 13
(see App. Br. PO 12). 14
The word “relaxed” itself denotes that a section of elastic is not 15
elongated, stretched or tensioned. To define the term “substantially relaxed” 16
as limited to a section of elastic that is not stretched and is not under tension 17
is to render to modifier “substantially” superfluous. To define the term 18
“substantially relaxed” as referring to a section of elastic that is “under no 19
substantial elongation” is simply circular—it begs the question how 20
substantial is a “substantial elongation.” Because our reviewing court 21
disfavors claim interpretations that fail to give weight to all words in the 22
claim, defining the term “substantially relaxed” as referring to “a section of 23
an elastic that is under no substantial elongation, is not stretched, and is not 24
under tension” is unreasonable. 25
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

21
The word “substantially” is a term of degree. The Patent Owner 1
correctly states the law regarding the interpretation of terms of degree: 2
As stated in Section 2111 of the Manual of Patent 3
Examining Procedure, under a broadest reasonable 4
interpretation, words of the claim are ordinarily 5
given their plain meaning, which is the ordinary 6
and customary meaning given to the term by those 7
of ordinary skill in the art at the time of the 8
invention. In certain circumstances, however, 9
terms of a claim do not have an ordinary meaning. 10
. . . Claim terms that are words of degree have no 11
ordinary meaning apart from “some standard for 12
measuring that degree” found in the specification. 13
See Exxon Research & Engineering Co. v. United 14
States, 265 F.3d 1371, 1381 (Fed. Cir. 2001). 15
Thus, when a claim term uses relative terminology 16
or terms of degree, one must look to the 17
specification for the meaning ascribed to that term 18
by the inventor. Further, the specification can 19
provide examples or teachings that can be used to 20
measure a degree even without a precise numerical 21
measurement. 22
(Reb. Br. PO 8; see also App. Br. PO at 12). 23
The word “relaxed” appears with terms of degree in several passages 24
of the ’211 patent. In particular, column 3, line 66 through column 4, line 21 25
of the ’211 patent teaches a disposable garment assembly formed from a 26
garment blank subassembly. In this garment blank subassembly: 27
One or more continuous threads of elastic is 28
disposed between, and secured to, the first and 29
second layers. First and second sections of the 30
elastic extend along the first and second leg 31
openings, thereby to form puckers about the first 32
and second leg openings at edges thereof. A third 33
section of the elastic extends across the crotch in 34
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

22
an essentially relaxed state, such that the width of 1
the crotch portion in the assembly corresponds 2
generally to the width of the crotch portion when 3
the crotch portion is laid out flat. 4
(’211 patent, col. 4, ll. 12–21 (italics added for emphasis)). Although this 5
passage refers to an “essentially relaxed” state rather than a “substantially 6
relaxed” state, the passage provides a standard for measuring whether an 7
elastic member is in either an “essentially relaxed” state or a “substantially 8
relaxed” state. 9
The Patent Owner argues that other passages of the ’211 patent, such 10
as those at column 2, lines 43–45; column 3, lines 54–56; column 12, lines 11
25–27 and 46–48; and column 15, lines 39–59, contrast “substantially 12
relaxed” elastic sections with elastic sections that are stretched or under 13
tension. (See App. Br. PO 12). The first two cited passages do not imply 14
that a “substantially relaxed” elastic section exhibits no elongation, stretch or 15
tension. All that these passages imply is that the “substantially relaxed” 16
elastic sections appearing in the embodiments taught by the ’211 patent 17
exhibit less elongation, stretch or tension than the elastic sections identified 18
as being stretched or under tension. The passages in column 12 describe the 19
particular garment blank subassemblies depicted in Figures 6 and 7, in 20
which elastic threads extending across the crotches of the subassemblies are 21
“substantially relaxed, and under no substantial elongation.” (’211 patent, 22
col. 12, lines 21–26 and 41–46). Setting aside the circularity of defining the 23
term “substantially relaxed” in terms of “substantial elongation,” the Patent 24
Owner offers no persuasive reason why the garment blank subassembly of 25
claim 1 should be limited to the characteristics of the particular elastics 26
discussed in connection with these examples. The passage at column 15, 27
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

23
lines 39–59 does not mention substantial relaxation, much less define the 1
term “substantially relaxed.” As such, these passages do not provide a 2
standard for measuring whether an elastic member is in a “substantially 3
relaxed” state. 4
Therefore, in order to give effect to the modifier “substantially,” we 5
conclude the term “substantially relaxed” means relaxed sufficiently such 6
that the width of the crotch portion in the assembly, that is, in the assembled 7
garment, corresponds generally to the width of the crotch portion when the 8
crotch portion is laid out flat. This interpretation is sufficiently broad to 9
encompass garment blank subassemblies, such as those depicted in Figures 6 10
and 7 of the ’211 patent, in which elastic extending across the crotch is 11
subject to no tension or elongation. On the other hand, claims 1 and 5 are 12
not interpreted so that those examples limit the claims. The Patent Owner 13
fails to persuade us that anything in the disclosure of the ’211 patent is 14
inconsistent with this interpretation. 15
Both the crotch of the backsheet 7 depicted in Figure 2 of Nomura and 16
the crotch of the diaper 1 depicted in Figure 1 of Nomura are shown lacking 17
puckering or gathers on the order of the puckering at the edges of the leg 18
openings when assembled. The absence of puckering in the crotch sections 19
depicted in Figures 1 and 2 implies that the widths of the two crotch sections 20
correspond generally to one another, that is, that the second sections 4A2, 21
4B2 of the elastic members 4A, 4B are substantially relaxed. Therefore, we 22
find that Nomura anticipates claims 1–3 and 5–7 of the ’922 patent. On this 23
basis, we sustain the Examiner’s rejection of these claims. 24
25
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

24
DECISION 1
We AFFIRM the Examiner’s decision rejecting claims 1–3 and 5–7. 2
Requests for extensions of time in this inter partes reexamination 3
proceeding are governed by 37 C.F.R. § 1.956. 4
In the event neither party files a request for rehearing within the time 5
provided in 37 C.F.R. § 41.79, and this decision becomes final and 6
appealable under 37 C.F.R. § 41.81, a party seeking judicial review must 7
timely serve notice on the Director of the United States Patent and 8
Trademark Office. See 37 C.F.R. §§ 90.1 and 1.983. 9
10
AFFIRMED 11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
Appeal 2014-008663
Reexamination Control 95/002,362
Patent No. US 6,260,211 B1

25
1
2
Patent Owner: 3
4
DORITY & MANNING, P.A. 5
ONE LIBERTY SQUARE 6
55 BEATTIE PLACE, SUITE 1600 7
GREENVILLE, SC 29601 8
9
Third Party Requester: 10
11
AMSTER, ROTHSTEIN & EBENSTEIN LLP 12
90 PARK AVENUE 13
NEW YORK, NY 10016 14
15
16
17
cu 18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38