Ex Parte Ashton et al

Board of Patent Appeals and Interferences

Jun 22, 2009

10824122 (B.P.A.I. Jun. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte GREGORY ASHTON, EIRO FUKUDA, and
MASAHARU NISHIKAWA
__________

Appeal 2009-001802
Application 10/824,122
Technology Center 3700
__________

Decided:1 June 22, 2009
__________

Before TONI R. SCHEINER, DONALD E. ADAMS, and ERIC GRIMES,
Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims 1-13 and 15-
17, all of the pending claims, which are directed to an absorbent article. The

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-001802
Application 10/824,122

Examiner has rejected the claims as anticipated by the prior art. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
The Specification states that “[c]ontemporary absorbent articles have
a topsheet, a backsheet, an absorbent core, a barrier cuff and a gasketing
cuff” (Spec. 1: 20-21). “While providing an inner and an outer cuff within
an absorbent article has its advantages, the resulting article is often too wide
in the crotch area, thus causing discomfort for the wearer” (id. at 1: 28-29).
The Specification discloses an absorbent article having a “dual cuff
. . . constructed of a continuous cuff material and enclosed by a cuff bond”
(id. at 2: 5). The Specification’s Figure 2 is shown below:

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The figure shows a fragmentary sectional view of an absorbent article,
including a cross-section of the dual cuff (id. at 3: 8). The Specification
describes the cuff as follows:
Dual cuff 30 has a proximate end 35, distal end 39, and regions
therebetween identified as first cuff 40 and second cuff 50.
Dual cuff 30 may be constructed from a continuous cuff
material 33 that substantially envelopes the elastics [42, 44] of
first cuff 40 and [52, 54] second cuff 50. . . . Moreover, cuff
material 33 need only be enclosed/bonded at a single location,
as exampled by cuff bond 70, in order to substantially envelope
elastics 42, 44, 52, 54, thus providing improved barrier
properties by minimizing the number of potential leakable
locations (e.g., bonding locations).
(Id. at 10: 18-28.)
The disclosed cuff design is said to provide a “reduction in overall
width within the crotch region [that] has been discovered to provide
significant comfort and wear properties” (id. at 15: 9-11).
Claim 1 is representative and reads as follows:
1. A unitary disposable absorbent article comprising:
an absorbent core having a garment surface and a body surface;
a liquid permeable topsheet positioned adjacent said body surface of said
absorbent core;
a liquid impermeable backsheet positioned adjacent said garment surface of
said absorbent core; and
an elastically contractible dual cuff having a proximate end and a distal end,
said dual cuff being joined to said article by a cuff bond, said dual
cuff having a first cuff and a second cuff, said first cuff being
disposed between said proximate end and said cuff bond, said second
cuff being disposed between said cuff bond and said distal end, said
dual cuff being constructed of a continuous cuff material and enclosed
by said cuff bond,
wherein said distal end is formed by said cuff material being folded, wherein
said proximate end is formed by said cuff material being folded;
wherein said first cuff envelopes at least one first elastic, wherein said first
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Application 10/824,122

elastic has a first and second end, wherein said first elastic is secured
to said first cuff near said first and second ends;
wherein said second cuff envelopes at least one second elastic, wherein said
second elastic has a first and second end, wherein said second elastic
is secured to said second cuff near said first and second ends;
wherein said first and second cuffs are barrier cuffs.
ANTICIPATION
Issue
The Examiner has rejected claims 1-13 and 15-17 under 35 U.S.C.
§ 102(b) as anticipated by St. Louis.2 The Examiner finds that St. Louis
discloses an absorbent article comprising all of the elements of claim 1,
including a “dual cuff 19 . . . constructed of a continuous cuff material 174
and enclosed by the cuff bond 172” (Answer 3).
Appellants contend that the product disclosed by St. Louis does not
include a dual cuff that is “enclosed by” a cuff bond, or elastics that are
secured near their ends to the two cuffs, as required by the claims (Appeal
Br. 5-7).
The issue presented in this appeal is: Did the Examiner err in finding
that St. Louis discloses an absorbent article comprising a dual cuff enclosed
by a cuff bond, and elastics secured near their ends to the cuffs?
Findings of Fact
1. St. Louis discloses an absorbent article comprising, among other
elements, a “gusset-flap member [that] provides a leg gusset section and a
containment flap section” (St. Louis, col. 2, ll. 6-7).

2 St. Louis et al., U.S. Patent 5,993,433, issued Nov. 30, 1999.
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2. St. Louis’ Figure 6 is reproduced below (with unneeded reference
numerals omitted):

The figure shows a “schematic, expanded, lateral cross-sectional view
of a configuration of the gusset-flap member” (id. at col. 3, ll. 1-2).
3. St. Louis discloses that the gusset-flap member includes a
“containment flap section 144 . . . integrally formed with a corresponding
one of the leg gusset sections 142” (id. at col. 4, ll. 53-55).
4. St. Louis discloses that the “outboard side portion 170 of the fabric
layer 176 is arranged to wrap around at least one side edge of the barrier
layer 174 and to extend inboard therefrom” (id. at col. 5, ll. 4-6).
5. St. Louis discloses that a “plurality of separate, longitudinally
extending elastomeric members 138 is attached and sandwiched by the
barrier layer 174 and the fabric layer 176” (id. at col. 5, ll. 8-10).
6. St. Louis discloses that “the inboard side portion 62 of the gusset-
flap fabric layer 176 is arranged to fold and wrap around an appointed
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folding line or other region. The resultant, folded over portion can then be
arranged to operatively sandwich . . . the second arrangement 68 of at least
one longitudinally extending elastomeric member.” (Id. at col. 5, ll. 39-45.)
7. St. Louis discloses that each gusset-flap member “can be
connected to at least one of the topsheet and backsheet layers with a gusset
attachment 172” (id. at col. 6, ll. 8-10).
8. St. Louis discloses that “the gusset attachment 172 includes an
article attachment which secures the leg gusset section 142 to the article
adjacent to its associated outwardly concave terminal side edge contour 15”
(id. at col. 19, ll. 4-8).
9. St. Louis discloses that “the invention can include a gusset
perimeter bond 130 which attaches a terminal side edge of the topsheet 28
and/or backsheet 30 to the leg gusset section 142 at least within the crotch
region” (id. at col. 19, ll. 27-31).
10. St. Louis discloses an embodiment of its absorbent article that
does not include a gusset perimeter bond 130 (id., Figure 5).
11. St. Louis discloses that the
elastomeric members 68 in each containment flap section 144
can be attached to at least one of the barrier and fabric layer
regions 61 and 63, respectively, with a suitable securing
mechanism, such as a selected pattern of adhesive or other type
of bonding. For example, the adhesive may be applied by
spraying adhesive discontinuous droplets or filaments, and/or
may be applied by arranging generally continuous lines of
adhesive in a selected pattern, such as a swirl pattern.
(Id. at col. 23, ll. 40-48.)
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12. St. Louis discloses that, “[a]lternatively, the elastomeric members
68 can be attached . . . with a plurality of individual, longitudinally
extending strips of adhesive” (id. at col. 23, ll. 52-55).
13. The Specification discloses that “[d]ual cuff 30 may be
constructed from a continuous cuff material 33 that substantially envelopes
the elastics of first cuff 40 and second cuff 50” (Spec. 10: 20-21).
14. The Specification discloses that “cuff material 33 need only be
enclosed/bonded at a single location, as exampled by cuff bond 70, in order
to substantially envelope elastics 42, 44, 52, 54, thus providing improved
barrier properties by minimizing the number of potential leakable locations
(e.g., bonding locations)” (id. at 10: 25-28).
15. The Specification discloses that “[c]uff bond 70 may be adhesive,
ultrasonic bonding, compression bonding, thermal bonding, combinations
thereof, and any other suitable bonding means known in the art which is
appropriate for the specific materials employed” (id. at 11: 12-15).
16. The Specification discloses that “[c]uff bond 70 may also join
dual cuff 30 to topsheet 24” (id. at 11: 15).
Principles of Law
[T]he PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary
usage as they would be understood by one of ordinary skill in
the art, taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the applicant’s specification.
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
“[T]he words of a claim ‘are generally given their ordinary and
customary meaning.’ . . . [T]he ordinary and customary meaning of a claim
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term is the meaning that the term would have to a person of ordinary skill in
the art in question at the time of the invention.” Phillips v. AWH Corp., 415
F.3d 1303, 1312-13 (Fed. Cir. 2005).
“[T]he meaning of a prior art reference requires analysis of the
understanding of an artisan of ordinary skill.” Finisar Corp. v. DirecTV
Group, Inc., 523 F.3d 1323, 1336 (Fed. Cir. 2008).
Analysis
St. Louis discloses an absorbent article that includes a gasket-flap
member, or dual cuff, constructed of a continuous cuff material and having
two cuffs formed by folding the material over a barrier layer so that each
cuff envelopes an elastic member. St. Louis discloses that the gasket-flap
member is attached to the absorbent article by a “gusset attachment.”
Appellants argue that St. Louis’ gusset attachment does not meet the
“cuff bond” limitation of the claims on appeal because the claims require the
dual cuff to be “enclosed by said cuff bond” (claims 1 and 15) (App. Br. 6).
Appellants argue that, as used in the Specification, “enclosed” does not
mean simply “bonded” but requires that the cuff bond “completely closes off
the cuff material” (id.). Appellants argue that “the St. Louis reference does
not appear to describe a gusset attachment completely closed off by [sic,
closing off] a gusset-flap” (id.).
We are not persuaded by this argument. First, we agree with the
Examiner that under the broadest reasonable interpretation “enclosed” is
equivalent to “bonded.” The Specification states that the “cuff material 33
need only be enclosed/bonded at a single location” (FF 14) (emphasis
added). While Appellants argue that this passage should not be interpreted
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to say that enclosed means the same thing as bonded (App. Br. 5-6), the rest
of the Specification supports just that interpretation. The element that is
disclosed to “enclose” the cuff material is referred to as “cuff bond 70.”
Bonds bond things, so if a bond is enclosing the dual cuff, then enclosing
involves bonding.
The Specification also equates enclosing with bonding in its statement
that “cuff material 33 need only be enclosed/bonded at a single location, . . .
thus providing improved barrier properties by minimizing the number of
potential leakable locations (e.g., bonding locations)” (FF 14). Since
“enclosing” the cuff material at a single location minimizes bonding
locations, the enclosing location is a bonding location.
In addition, St. Louis would anticipate the claims even if “enclosing”
were interpreted to mean “completely closing off,” as Appellants argue. St.
Louis discloses that gusset attachment 172 secures the entire gusset flap
assembly, including leg gusset section 142 (the outboard flap), to the
topsheet. St. Louis describes perimeter bond 130 as being optional (“the
invention can include a gusset perimeter bond 130” (FF 9) (emphasis
added)). St. Louis discloses an embodiment that does not include perimeter
bond 130 (FF 10). The most reasonable reading of St. Louis, therefore, is
that gusset attachment 172 attaches both ends of the gusset material making
up the gusset-flap assembly to the topsheet of its absorbent article, and
therefore completely closes off the gusset-flap member.
Appellants also argue that St. Louis does not describe its elastic
members as being secured near their ends to the cuffs: “[N]either the
specification nor the figures of the St. Louis reference appear to describe any
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particular location for affixing the elastomeric members 68, 68a, and 138.
Thus, the St. Louis reference does not describe an embodiment wherein an
elastic member is secured near its ‘first and second ends’” (App. Br. 9-10).
This argument is also unpersuasive. While it is true that St. Louis
does not expressly disclose securing its elastic members near their ends, or
along their entire length, we find that that teaching is implicit in St. Louis’
disclosure.
St. Louis discloses that its elastic members can be secured in a variety
of ways, including using sprayed adhesive, continuous lines of adhesive, or
strips of adhesive. St. Louis does not expressly state whether the adhesive
should or should not be applied near the ends of the elastic members. But
those of ordinary skill in the art would recognize that the elastic members
would only function to contract the cuffs between points where the elastics
were attached to the cuffs; including unattached ends on the elastic members
would serve no functional purpose. It is reasonable to conclude, therefore,
that those of skill in the art would have understood St. Louis’ disclosure to
include elastic members attached at, or at least near, their ends to the cuffs.
Conclusion of Law
The Examiner did not err in finding that St. Louis discloses an
absorbent article comprising a dual cuff enclosed by a cuff bond and elastics
secured near their ends to the cuffs.
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SUMMARY
We affirm the rejection of claim 1 as anticipated by St. Louis. Claims
2-13 and 15-17 fall with claim 1 because they were not argued separately.
37 C.F.R. § 41.37(c)(1)(vii).
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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