Ex parte Allison-Rodgers

Board of Patent Appeals and Interferences

Mar 24, 1998

08211222 (B.P.A.I. Mar. 24, 1998)

Application for patent filed March 25, 1994. This application is a1
National stage application under 35 U.S.C. § 371 of PCT/AU92/00515, filed
September 25, 1992.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 21
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte SUSAN M. ALLISON-RODGERS
__________
Appeal No. 97-3008
Application 08/211,2221
__________
ON BRIEF
__________
Before COHEN, MEISTER and NASE, Administrative Patent Judges.
MEISTER, Administrative Patent Judge.
DECISION ON APPEAL
Susan M. Allison-Rogers (the appellant) appeals from the
final rejection of claims 1, 2 and 4-8, the only claims remaining
in the application.
We REVERSE.
Appeal No. 97-3008
Application 08/211,222
Translation attached.2
2
The appellant’s invention pertains to a garment that is
utilized in conjunction with separate sanitary napkins or
disposable pads that are particularly adapted for babies and
incontinent adults. Of particular importance is the provision of
an elasticized dart extending at least partially along each side
of the garment for the purpose of forming upstanding wet guards,
thus minimizing leakage of body fluids. Independent claim 1 is
further illustrative of the appealed subject matter and a copy
thereof may be found in the appendix to the appellant’s brief.
The references relied on by the examiner are:
Toussant et al. (Toussant) 4,699,622 Oct. 13, 1987
Holliday et al. (Holliday) 4,978,345 Dec. 18, 1990
Merica 790,062 Feb. 05, 1958
(Great Britain)
Gubik et al. (Gubik) 1,070,779 Dec. 10, 19592
(Germany)
Claims 1, 2 and 4-6 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Merica in view of Gubik.
Claim 7 is rejected under 35 U.S.C. § 103 as being
unpatentable over Merica in view of Gubik and Toussant.
Claim 8 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Merica in view of Gubik, Toussant and Holliday.
Appeal No. 97-3008
Application 08/211,222
In setting forth the grounds of rejection on page 3 of the answer the3
examiner has incorporated by reference both Paper Nos. 5 and 8. Such a
procedure by the examiner is totally improper and inappropriate. Manual of
Patent Examining Procedure (MPEP) § 1208 (6th ed., Rev. 3, Jul. 1997)
expressly provides that incorporation by reference may be made only to a
single other action.
3
The examiner’s rejections are explained on page 2 of the
final rejection (Paper No. 8) and page 3 of the first Office
action (Paper No. 5). The arguments of the appellant and3
examiner in support of their respective positions may be found on
pages 3-14 of the brief, pages 1-6 of the reply brief and pages
4-6 of the answer.
Although the examiner’s position, taken as a whole, is less
than clear, it appears that the examiner considers the position
set forth in the first Office action (Paper No. 5), with respect
to claim 3, to now be applicable to independent claim 1. This
position states that:
Applicant claims elasticized darts which Merica
does not clearly teach, see page 2, lines 117-127.
However, Gubik et al teaches elasticizing pleats or
darts, see 4b, 4c, 4d, 4e, 4f in Figures 1-3 thereof
and col. 3, lines 58-60. To employ elasticized pleats
or darts as taught by Gubik et al on the Merica device
would be [sic, have been] obvious to one of ordinary
skill in the art in view of the recognition that such a
feature would better position the absorbent [sic] and
better seal the garment to the wearer, i.e., less
leakage and the desirability of such in Merica. [Page
5.]
It also appears from page 5 of the answer that the examiner
Appeal No. 97-3008
Application 08/211,222
Webster’s Third New International Dictionary of the English Language,4
Unabridged, G. & C. Merriam Co., Springfield, MA, 1981, defines “dart” as --
3c: a stitched tapered fold used esp. in fitting garments to the curves of the
body --.
The references to “Reader’s Digest” and “Ladbury” refer to text5
material attached to the amendment filed on February 21, 1995 (Paper No. 7).
4
considers (1) the appellant’s specification to provide a “deviant
definition, one which is purposely different from the [accepted]
definition” of the term “dart” and (2) the arrangement of Merica4
(wherein flat pleats B or B’ are stitched along their lengths) to
fall within the definition of a “dart” as used by the appellant.
The appellant argues that nowhere in the specification is
there a deviant definition of “dart.” According to the appellant
it is evident from the figures, particularly figures 1
and 2, that each dart 15 comprises an elongate fold of
material tapering to a point at each end (similar to
the specimen provided with the Amendment After Final).
Such a disclosure is completely consistent with the
definitions provided with the first Amendment. For
example, each of the three illustrations under the
section entitled “Darts” in the Reader’s Digest
reference include illustrations of aligned darts
extending above and below the waistlines of dresses.
Obviously, when the two pieces of fabric are sewn
together, the aligned darts are then identical to those
of the present invention depicted in figures 1 and 2 as
would be well appreciated by those of ordinary skill in
the art. This is clearly shown on the previously
provided Ladbury references as well, where such darts
are perhaps more properly referred to as “double
pointed darts”. [Brief, pages 9 and 10.]5
Having carefully considered the respective positions of the
appellant and the examiner we find ourselves in agreement with
Appeal No. 97-3008
Application 08/211,222
5
the appellant. We have carefully reviewed the specification but
nowhere therein find a “deviant” definition of a “dart” as the
examiner alleges. As set forth in the specification (see the
paragraph bridging pages 1 and 2; page 5, lines 13-15) and claim
1, lines 10-12, the elasticized dart extends at least partially
along the sides of the garment in order to (1) minimize lateral
movement of the absorbent product and (2) form “upstanding wet
guards” to minimize leakage of body fluids. The elasticized dart
is further described in the specification as being
formed by fixing a stretched length of elastic material
in a fold of the liquid-resistant or liquid-impervious
material along one of the sides of the garment and
stitching together the sides of the fold to enclose the
stretched elastic material and thereby form the dart.
[Page 2; emphasis ours.]
See also specification, page 4, and Figures 1-3 of the drawing.
Accordingly, one of ordinary skill in this art, consistent
with the appellant’s specification, would construe the
elasticized dart 15 to comprise a stitched fold formed by (1)
folding material along an elongate fold line and (2) stitching
the sides of the folded material together so as to enclose a
length of the folded material in such a manner that the stitching
tapers to a point coincident with the fold line at each end, thus
forming an upstanding wet guard. Clearly there is nothing in
Appeal No. 97-3008
Application 08/211,222
6
either Merica or Gubik which would either teach or suggest such a
dart. In Merica the pleats B, B’ are simply stitched along a
line generally parallel to the fold line along the entire length
thereof in such a manner that the pleats lie flat. In Gubik a
length of material is pleated and folded along a generally
longitudinal fold line and a narrow length of elastic material
(e.g., 4c and 4d) is placed over the pleated and folded material
and stitched thereto along the entire length of the fold line.
With respect to claims 7 and 8, we have carefully reviewed
the teachings of Toussant and Holliday but find nothing therein
which would overcome the deficiencies of Merica and Gubik which
we have noted above.
The examiner’s rejections of claims 1, 2 and 4-8 are
reversed.
REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
JAMES M. MEISTER ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
Appeal No. 97-3008
Application 08/211,222
7
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
Larson & Taylor
727 23rd Street, South
Arlington, VA 22202