10484279 (B.P.A.I. Apr. 5, 2010)

Ex Parte Coates et al

Board of Patent Appeals and InterferencesApr 5, 2010

10484279 (B.P.A.I. Apr. 5, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte FREDRICA V. COATES and DONALD A. SHELDON ____________________ Appeal 2009-006868 Application 10/484,279 Technology Center 3700 ____________________ Decided: April 5, 2010 ____________________ Before WILLIAM F. PATE, III, STEFAN STAICOVICI, and FRED A. SILVERBERG, Administrative Patent Judges. SILVERBERG, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Fredrica V. Coates and Donald A. Sheldon (Appellants) seek our review under 35 U.S.C. § 134 of the final rejection of claims 1-3, 5, 9-13, 15-17, 29-38, 40-43, 46, 47, 49 and 50. We have jurisdiction under 35 U.S.C. § 6(b) (2002). Appeal 2009-006868 Application 10/484,279 2 SUMMARY OF DECISION We REVERSE. THE INVENTION Appellants’ claimed invention is directed to adjustable belts for protective undergarments (Spec. 1:12-13). Claim 1, reproduced below, is representative of the subject matter on appeal. 1. An adjustable absorbent article comprising: an absorbent body configured to be positioned adjacent a wearer of said absorbent article; and at least one adjustable belt configured to be releasably attached to said absorbent body and to retain said absorbent body adjacent a wearer of said absorbent article, at least one end of said at least one belt having a button for engagement with a buttonhole on said absorbent body, said at least one belt having at least one buttonhole spaced from said button of said belt for engagement with said button of said belt to adjust the size of said belt. THE REJECTIONS The Examiner relies upon the following as evidence of unpatentability: Robinson US 3,788,323 Jan. 29, 1974 Mims US 4,114,621 Sep. 19, 1978 Appeal 2009-006868 Application 10/484,279 3 The following rejections by the Examiner are before us for review: 1. Claims 1-3, 5, 9, 10, 15-17, 29-38, 40-43, 46, 47, 49 and 50 are rejected under 35 U.S.C. § 102(b) as being anticipated by Mims. 2. Claims 11-13 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Mims in view of Robinson. ISSUE The issue before us is whether the Examiner erred in finding that Mims describes a releasably attachable adjustable belt as called for in independent claims 1, 17, 29, 35, 36, 46, 47 and 50 (App. Br. 6, 10-15 and 17). ANALYSIS Claims 1-3, 5, 9, 10, 15-17, 29-38, 40-43, 46, 47, 49 and 50 Appellants contend that Mims does not describe a releasably attachable belt being adjustable in size as called for in independent claims 1, 17, 29, 35, 36, 46, 47 and 50 (App. Br. 6, 10-15 and 17). The Examiner found that Mims describes (1) “plural resilient belts 25, 16, 17 releasably attached to the absorbent body,” and (2) “each belt having a button/releasable engagement means 18,26.” (emphasis added) (Ans. 4). The Examiner further found that Mims’ “Figure 1 shows a plurality of attachment surfaces 18 and 19, which indicates the belt is adjustable.” (emphasis added) (Ans. 6). Appellants’ Specification describes that “[a]s used herein, the term ‘belt’ refers to a segment that, alone or in combination with the undergarment body and/or one or more belts, helps to retain a garment to the Appeal 2009-006868 Application 10/484,279 4 body of the wearer.” [Spec. 6: 26-28]. The ordinary meaning of the word “belt” includes “a strip of flexible material worn esp. around the waist.”1 Appellants’ proffered definition of “belt” is consistent with this ordinary meaning. Mims describes a garment 10 (col. 2, l. 41 and fig. 1) as a boxer type pair of incontinent shorts (col. 4, ll. 24-29). Mims’ garment 10 includes a tie or a draw string 15 (col. 2, ll. 41-52 and fig. 1). Mims’ garment 10 further includes opposed releasable fastening surfaces 18, 19 for securing crotch portions 16, 17 (col. 2, ll. 60-66); mateable securing surfaces 20, 21 which operate in the same manner as fasteners 18, 19 (col. 2, l. 67-col. 3, l. 3); and a pad 25 having fastening means 26 at the corners for cooperating with mating fastener portions 27 (col. 3, ll. 4-11). We find that Mims’ garment 10 is adjustably sized to the body of the user by the pulling and tying of the draw string 15, and not by the fastening surfaces 18, 19, or the fastening means 26, 27. Mims is silent as to any adjustment being provided (1) by fastening surfaces 18, 19 for securing crotch portions 16, 17 and (2) by fastening means 26, 27 for securing pad 25. Boxer type shorts do not usually have crotch portions that are adjustable in size. Further, Mims describes that the tie or draw string 15 is pulled and tied to provide a snug comfort (col. 4, ll. 12-39 and fig. 1). Therefore, the Examiner has not established that (1) any adjustment is described in Mims for securing the boxer type shorts’ crotch portions 16, 17, and (2) any adjustment is described or needed in Mims to provide snug comfort, that is, adjust the size of the boxer type shorts when securing the pad 25. See Continental Can Co. v. Monsanto Co., 948 F.2d 1264, 1268 (Fed. Cir. 1991) 1 MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1996). Appeal 2009-006868 Application 10/484,279 5 (Under principles of inherency, when a reference is silent about an asserted inherent characteristic, it must be clear that the missing descriptive matter is necessarily present in the thing described in the reference). Therefore, we do not find that Mims’ crotch portions 16, 17; and pad 25 are belts that are adjustable in size as called for in independent claims 1, 17, 29, 35, 36, 46, 47 and 50. Accordingly, Mims does not anticipate independent claims 1, 17, 29, 35, 36, 46, 47 and 50. For the same reasons, Mims does not anticipate claims 2, 3, 5, 9, 10, 15, 16, 30-34, 37, 38, 40-43 and49, which depend from claims 1, 17, 29, 35, 36, 46, 47 and 50, respectively. Claims 11-13 The Examiner has not relied on Robinson for any teaching that would remedy the deficiency in Mims (Ans. 4-5). We thus conclude that the Examiner also erred in rejecting claims 11-13 as being unpatentable over Mims in view of Robinson. CONCLUSION The Examiner has erred in finding that Mims describes a releasably attachable adjustable belt as called for in independent claims 1, 17, 29, 35, 36, 46, 47 and 50. Appeal 2009-006868 Application 10/484,279 6 DECISION The decision of the Examiner to reject claims 1-3, 5, 9-13, 15-17, 29- 38, 40-43, 46, 47, 49 and 50 is reversed. REVERSED Klh RATNERPRESTIA P.O. BOX 980 VALLEY FORGE, PA 19482