Ex Parte D et al

Board of Patent Appeals and Interferences

Jul 9, 2012

12144932 (B.P.A.I. Jul. 9, 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.
12/144,932 06/24/2008 Roberto D'Addario CM3198M 2460
27752 7590 07/10/2012
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
ZALUKAEVA, TATYANA
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
07/10/2012 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 ROBERTO D‟ADDARIO and IVANO GAGLIARDI
__________

Appeal 2011-001503
Application 12/144,932
Technology Center 3700
__________

Before LORA M. GREEN, FRANCISCO C. PRATS, and
JACQUELINE WRIGHT BONILLA, Administrative Patent Judges.

PRATS, Administrative Patent Judge.

DECISION ON APPEAL
This appeal under 35 U.S.C. § 134 involves claims to an absorbent
article. The Examiner entered a rejection for obviousness.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Appellants‟ invention concerns a breathable pantiliner composed of a
fluid permeable topsheet, a fluid permeable backsheet, and an absorbent core
disposed between the top and backsheet (Spec. 2). The pantiliner also has a
leakage-preventing fluid impermeable barrier layer between the absorbent
core and the backsheet (id. at 5).
Appeal 2011-001503
Application 12/144,932

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Appellants disclose that by placing, on the impermeable layer, a
colored pattern that is visible to the user, the presence of the leakage-
preventing layer is highlighted to the user, and, “in particular when the fluid
impermeable barrier layer is contiguous with the core, . . . the position and
size of the core is outlined, which may otherwise be difficult to recognize, in
particular for relatively thin pantiliners” (id. at 4). Thus, as seen in
Appellants‟ Figure 1, patterned fluid impermeable barrier layer 24 is
coextensive in size and shape with the absorbent core 20, thus indicating to
the user the presence and location of both the absorbent core and its
underlying leakage protecting layer (id. at 5; see also Fig. 1).
Claims 1-4, 6, 7, 9-13, 15, and 17-20 stand rejected and appealed
(App. Br. 2). The claims have not been argued separately and therefore
stand or fall together. See 37 C.F.R. § 41.37(c)(1)(vii).
Claim 1 is representative and reads as follows:
1. A pantiliner comprising:
a. a nonwoven topsheet,
b. a nonwoven backsheet, wherein said topsheet and backsheet
are joined and define the overall surface of the pantiliner and a
pantiliner periphery,
c. an absorbent core disposed between said topsheet and said
backsheet, wherein said absorbent core defines a core
periphery,
d. a fluid impermeable barrier layer disposed between said
absorbent core and said backsheet, said fluid impermeable
barrier layer being substantially coextensive with said absorbent
core, and said fluid impermeable barrier layer comprising a
colored pattern visible through at least one of the topsheet or
the backsheet, said colored pattern being capable of indicating
the presence of said fluid impermeable barrier layer, and said
colored pattern substantially outlining the position and size of
said absorbent core,
Appeal 2011-001503
Application 12/144,932

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e. a breathable zone defined by an area of said nonwoven
topsheet and said nonwoven backsheet that extends radially
outwardly between said core periphery and said pantiliner
periphery, said breathable zone representing at least 20% of an
area defined within said pantiliner periphery.

The sole rejection before us for review is the Examiner‟s rejection of
claims 1-4, 6, 7, 9-13, 15, and 17-20 under 35 U.S.C. § 103(a) as obvious
over Muira,
1
Anderson,
2
Veglio,
3
and Ecker
4
(Ans. 4-12).
DISCUSSION
The Examiner cited Miura as describing a pantiliner having nonwoven
top and back sheets, an absorbent core, and an impermeable barrier layer
“comprising a colored pattern on the internal surface thereof which can be
seen through the garment contacting layer and/or the body contacting layer”
as required by claim 1 (see Ans. 5). As evidence that an ordinary artisan
would have considered it obvious to configure Miura‟s pantiliner to have a
breathable zone of at least 20% as claim 1 requires, the Examiner cited
Anderson and Veglio as teaching that pantiliners with nonwoven top and
back sheets were known in the art to have breathable zones constituting as
much as 25% of the surface area of the pantiliner (see id. at 5-6).
As evidence that an ordinary artisan would have considered it obvious
to include a visible colored pattern as required by claim 1 on an
impermeable layer of Miura‟s pantiliner, the Examiner cited Ecker as
teaching a pantiliner with an “impermeable layer [that] comprises a colored

1
WO 2004/006818 A1 (published January 22, 2004).
2
U.S. Patent No. 4,681,578 (issued July 21, 1987).
3
WO 2005/084597 A1 (published September 15, 2005).
4
U.S. Patent App. Pub. No. 2007/0093770 A1 (published April 26, 2007).
Appeal 2011-001503
Application 12/144,932

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pattern, which pattern is visible through at least one of the topsheet or the
backsheet/cloth-like material, and such layer is coextensive with the core”
(id. at 7). Based on the references‟ teachings, the Examiner reasoned:
Therefore, to employ a garment contacting layer which is liquid
impermeable but vapor permeable, i.e. breathable, of composite
materials including a nonwoven backsheet and fluid
impermeable barrier layer in which the barrier layer is disposed
between the absorbent core and the backsheet and is
coextensive with the former, includes a colored pattern on the
internal surface thereof such that the barrier layer comprises at
least a portion of the colored pattern, which can be seen through
the garment contacting layer and/or the body contacting layer, a
breathable zone is defined by an area of sheets other than such
impermeable layer which zone extends radially outwardly
between the peripheries of the core and pantiliner, and the
breathable zone represents at least 20% of an area within the
pantiliner periphery as taught by [Anderson, Veglio, and
Ecker,] would be obvious to one of ordinary skill in the art in
view of that such would still provide emotional/informational
benefit to the user while providing better retention and
absorption of fluids and more efficient passage of vapor, e.g.
breathability, and the desire of such combination of features by
[Miura].

(Id. at 7.)
Appellants‟ argument, essentially, is that
the applied art does not teach or suggest at least the following
features which are recited in the rejected claims: a fluid
impermeable barrier layer disposed between said absorbent core
and said backsheet, wherein said fluid impermeable barrier
layer comprises a colored pattern visible through at least one of
the topsheet or the backsheet, said colored pattern being capable
of indicating the presence of said fluid impermeable barrier
layer, and said colored pattern substantially outlining the
position and size of said absorbent core.
Appeal 2011-001503
Application 12/144,932

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(App. Br. 6.)
As stated in In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992):
[T]he examiner bears the initial burden . . . of presenting a
prima facie case of unpatentability. . . .
After evidence or argument is submitted by the applicant
in response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration
to persuasiveness of argument.

Appellants‟ arguments do not persuade us that a preponderance of the
evidence fails to support the Examiner‟s prima facie case of obviousness as
to claim 1.
Claim 1 recites a pantiliner composed of nonwoven top and back
sheets joined together with an absorbent core disposed between them. The
pantiliner has a breathable zone that extends radially outwardly between the
absorbent core periphery and the pantiliner periphery, the breathable zone
being at least 20% of the area within the pantiliner periphery.
Claim 1 also requires the pantiliner to have a fluid impermeable
barrier layer disposed between said absorbent core and the backsheet. The
fluid impermeable layer must be substantially coextensive with the
absorbent core.
As to the limitations at issue, claim 1 requires the fluid impermeable
barrier layer to have a colored pattern visible through at least one of the
topsheet or the backsheet, the colored pattern being capable of indicating the
presence of said fluid impermeable barrier layer. The colored pattern must
also substantially outline the position and size of the absorbent core.
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Application 12/144,932

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As the Specification explains, in addition to geometric shapes or
natural elements such as floral patterns, “„[p]attern‟ also includes a
uniformly colored surface” (Spec. 4).
As the Examiner points out, and as required by claim 1, Ecker
discloses including a fluid impermeable barrier layer between the absorbent
core and breathable backsheet of a pantiliner, the secondary backsheet being
substantially coextensive with the absorbent core:
The articles of the invention may comprise a secondary
backsheet layer 22 intermediate the absorbent core 20 and the
backsheet layer 24. The use of a secondary backsheet is
particularly indicated in [the] presence of [an] air permeable
backsheet. The purpose of the secondary backsheet is to retard
or prevent liquid from passing from the absorbent core to the
outside of the product, while allowing free air flow through it.

(Ecker [0066]; see also, id. at Fig. 1.)
Ecker also discloses that its pantiliner includes a zone of hydrophobic
ink 18 applied to at least one of the liner‟s layers, the ink covering a portion
of the absorbent core‟s periphery, and extending to the periphery of the
article (see id. at [0039]-[0040]; also id. at Fig. 1). Ecker discloses that the
ink 18 may be applied as “two stripes that extend substantially along the
whole length of the transversal side edges of the article, or in another
embodiment completely surround[ing] its periphery (FIG. 5)” (id. at [0042]).
Ecker discloses that the ink “may be applied homogeneously over the
whole area of application, or may be applied heterogeneously, for example
to display a pre-determined pattern” (id. at [0047]). Ecker discloses that its
ink can be “of any desired colors or shades, including red, green[,] blue,
black or even white, as long as the ink is at least partially visible in the
finished product” (id. at [0048]).
Appeal 2011-001503
Application 12/144,932

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Ecker explains that the hydrophobicity of the ink helps prevent
“leakage along that portion of the periphery of the core and re-wetting. A
simultaneous benefit is that this ink presents a visual clue to the user that the
article has an improved resistance to leakage along that portion of the
periphery of the core, e.g. the longitudinal edges” (id. at [0007]).
While Ecker discloses preferred embodiments in which the ink is
applied to a secondary topsheet situated between the absorbent core (see id.
at [0039]-[0040], Ecker also discloses that “[t]he ink may be applied on any
of the layers making the article” (id. at [0046]). Thus, the zone of ink
application may “extend downwardly, e.g. to join the backsheet or secondary
backsheet” (id. at [0040]).
Given Ecker‟s disclosure that applying a visible colored pattern of
hydrophobic ink to any layer of a pantiliner not only enhances peripheral
leak protection, but also “presents a visual clue to the user that the article has
an improved resistance to leakage along that portion of the periphery of the
core, e.g. the longitudinal edges” (id. at [0007]), we are not persuaded that
the Examiner erred in finding that an ordinary artisan would have been
prompted to apply such a pattern to a fluid impermeable layer included in a
pantiliner such as that described in Miura, Veglio, and Anderson.
While Appellants argue that the patterns applied to the intermediate
layers of the pantiliners of Miura and Ecker do not outline the position and
size of the absorbent core, claim 1 only requires the colored pattern to
“substantially outlin[e] the position and size of said absorbent core” (App.
Br. 11 (emphasis added)). Thus, although Ecker may teach that its patterned
ink application should overlap the periphery of the absorbent core, Ecker‟s
Appeal 2011-001503
Application 12/144,932

8
ink pattern nonetheless substantially surrounds the absorbent core,
effectively framing the core (see, e.g., Ecker at Figs. 1 and 5).
Therefore, given that Ecker‟s colored ink pattern in effect frames its
pantiliner‟s absorbent core, we are not persuaded that the Examiner erred in
finding that the cited references teach or suggest a pattern that substantially
outlines the core‟s position and size, as claim 1 requires. Moreover, given
Ecker‟s disclosure that its colored ink pattern may be applied to any of the
pantiliner‟s layers [id. at [0046]), including an express disclosure that the
pattern may “extend downwardly, e.g. to join the backsheet or secondary
backsheet” (id. at [0040] (emphasis added)), we are not persuaded that Ecker
fails to suggest applying its pattern to an impermeable layer disposed
between the absorbent core and backsheet, as claim 1 also requires.
As to claim 1‟s requirement that the pattern be “capable of indicating
the presence of said fluid impermeable barrier layer” (App. Br. 11), as the
Examiner notes, Ecker expressly discloses that the colored ink pattern
should be visible so as to present “a visual clue to the user that the article has
an improved resistance to leakage along that portion of the periphery of the
core, e.g. the longitudinal edges” (Ecker [0007]). Thus, we agree with the
Examiner that, by teaching the suitability of applying a visible pattern to the
fluid impermeable layer, Ecker discloses that the pattern is capable of
indicating the presence of the fluid impermeable layer.
In sum, for the reasons discussed, Appellants‟ arguments do not
persuade us that a preponderance of the evidence fails to support the
Examiner‟s prima facie case of obviousness as to claim 1. We therefore
affirm the Examiner‟s rejection of that claim as obvious over Muira,
Anderson, Veglio, and Ecker. As they were not argued separately, claims 2-
Appeal 2011-001503
Application 12/144,932

9
4, 6, 7, 9-13, 15, and 17-20 fall with claim 1. See 37 C.F.R. §
41.37(c)(1)(vii).
SUMMARY
We affirm the Examiner‟s rejection of claims 1-4, 6, 7, 9-13, 15, and
17-20 under 35 U.S.C. § 103(a) as obvious over Muira, Anderson, Veglio,
and Ecker.
TIME PERIOD
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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