11510400 (B.P.A.I. Mar. 22, 2012)

Ex Parte Cohen

Board of Patent Appeals and InterferencesMar 22, 2012

11510400 (B.P.A.I. Mar. 22, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE 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. 11/510,400 08/25/2006 Jason C. Cohen 64049933US01 8065 23556 7590 03/23/2012 KIMBERLY-CLARK WORLDWIDE, INC. Tara Pohlkotte 2300 Winchester Rd. NEENAH, WI 54956 EXAMINER KIDWELL, MICHELE M ART UNIT PAPER NUMBER 3761 MAIL DATE DELIVERY MODE 03/23/2012 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 BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte JASON C. COHEN __________ Appeal 2010-010899 Application 11/510,400 Technology Center 3700 __________ Before DEMETRA J. MILLS, ERIC GRIMES, and LORA M. GREEN, Administrative Patent Judges. MILLS, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134. The Examiner has rejected the claims for obviousness. We have jurisdiction under 35 U.S.C. § 6(b). Appeal 2010-010899 Application 11/510,400 2 STATEMENT OF CASE 1. An array of disposable articles, the array contemporaneously manufactured by or for the same business entity, comprising: a first disposable article comprising: a first front end edge; a first longitudinal length; a first pair of leg openings having a first leg opening median located a first longitudinal distance from the first front end edge; and a first leg opening longitudinal position ratio defined by the first longitudinal distance divided by the first longitudinal length; and a second disposable article comprising: a second front end edge; a second longitudinal length; a second pair of leg openings having a second leg opening median located a second longitudinal distance from the second front end edge; and a second leg opening longitudinal position ratio defined by the second longitudinal distance divided by the second longitudinal length; wherein the second leg opening longitudinal position ratio divided by the first leg opening longitudinal position ratio is greater than 1.2. Cited References Suprise US 5,853,405 Dec. 29, 1998 Chakravarty et al. US 2006/0069372 A1 Mar. 30, 2006 Grounds of Rejection Claims 1-2, 7 and 11-12 are rejected under 35 U.S.C. § 103(a) over Suprise. Claims 3-6 and 8-21 are rejected under 35 U.S.C. § 103(a) over Suprise in view of Chakravarty. Appeal 2010-010899 Application 11/510,400 3 FINDINGS OF FACT The Examiner’s findings of fact are set forth in the Answer at pages 3-6. The following facts are highlighted. 1. According to the Specification, page 12, the leg opening longitudinal positioning ratio is defined as the longitudinal distance 68 divided by the longitudinal length 64, referencing Fig 2 below. 2. Figure 2 of the Specification is reproduced below. Figure 2, as annotated, shows diaper array with longitudinal length 64 and longitudinal distance 68. 3. Suprise discloses that crotch length 52 will vary depending upon the size of the wearer. Desirably, the crotch length 52 is at least about 15% and more desirably about 20% of the length 32 of the outer cover 30. (Col. 5 ll. 43-53.) 4. Figure 6 of Suprise is reproduced below. Appeal 2010-010899 Application 11/510,400 4 Figure 6 shows crotch length 52. Discussion ISSUE The Examiner concludes that The difference between Suprise and claim 1 is the provision that the second leg opening longitudinal position ratio divided by the first leg opening longitudinal position ratio is greater than 1.2[.] It would have been obvious to one of ordinary skill in the art to provide the articles disclosed by Suprise with the claimed ratio because Suprise provides articles with variable crotch regions that fall within a range that would ultimately provide the claimed ratio as taught in col. 5, lines 44 - 53. Since the general conditions the claim have been disclosed by the prior art, a discovery of an optimal or workable range is within the level of ordinary skill in the art. (Ans. 4.) Appeal 2010-010899 Application 11/510,400 5 Appellant contends that the Examiner has not shown that Suprise teaches an array of absorbent articles. (App. Br. 6.) Appellant argues that the Examiner has not articulated how or where Suprise teaches or suggests a leg opening position ratio of greater than 1.2 for an array of articles. (Id. at 7.) The issue is: Does the cited prior art support the Examiner’s conclusion that Suprise would have made obvious an array of diapers in which the second leg opening longitudinal position ratio divided by the first leg opening longitudinal position ratio is greater than 1.2, as claimed? PRINCIPLES OF LAW “In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden of presenting a prima facie case of obviousness. Only if that burden is met, does the burden of coming forward with evidence or argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532 (Fed. Cir. 1993) (citations omitted). In order to determine whether a prima facie case of obviousness has been established, we consider the factors set forth in Graham v. John Deere Co., 383 U.S. 1, 17 (1966): (1) the scope and content of the prior art; (2) the differences between the prior art and the claims at issue; (3) the level of ordinary skill in the relevant art; and (4) objective evidence of nonobviousness, if present. Moreover, “obviousness requires a suggestion of all limitations in a claim.” CFMT, Inc. v. Yieldup Intern. Corp., 349 F.3d 1333, 1342 (Fed. Cir. 2003) (citing In re Royka, 490 F.2d 981, 985 (CCPA 1974)). Appeal 2010-010899 Application 11/510,400 6 ANALYSIS Because both obviousness rejections are decided on the same issue, we treat these rejections together. We do not find the Examiner has provided sufficient evidence to support a prima facie case of obviousness of the claimed subject matter. Appellant argues that the Examiner has not articulated how or where Suprise teaches or suggests a leg opening position ratio of greater than 1.2 for an array of articles. (App. Br. 7.) We are persuaded by Appellant’s argument. The Examiner has not indicated how variation in crotch length 52 of Suprise (Fig. 6.) would have made obvious a value greater than 1.2 for the second leg opening longitudinal position ratio divided by the first leg opening longitudinal position ratio. The Examiner has not set forth a prima facie case of obviousness and the rejections are reversed. CONCLUSION OF LAW The cited references do not support the Examiner’s obviousness rejections. REVERSED cdc