10444605 (B.P.A.I. Jan. 5, 2012)

Ex Parte Drzewiecki et al

Board of Patent Appeals and InterferencesJan 5, 2012

10444605 (B.P.A.I. Jan. 5, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte BRIAN MICHAEL DRZEWIECKI and JOSEPH M. LUIZZI __________ Appeal 2010-008418 Application 10/444,605 Technology Center 3700 __________ Before TONI R. SCHEINER, DEMETRA J. MILLS, and FRANCISCO C. PRATS, Administrative Patent Judges. SCHEINER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 from the rejection of claim 26, the only claim pending, is directed to an absorbent article. The claim has been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appeal 2010-008418 Application 10/444,605 2 STATEMENT OF THE CASE Claim 26 reads as follows: 26. An absorbent article for feminine hygiene adapted for placement in a crotch portion of an undergarment, said absorbent article comprising: a liquid permeable body faceable layer; a liquid impermeable garment faceable layer and an aqueous liquid absorbing material between said body faceable layer and said garment faceable layer, said aqueous liquid absorbing material comprising a homogeneous mixture of a hot melt adhesive and an aqueous liquid absorbing polymer, wherein said aqueous liquid absorbing polymer is present in the mixture in an amount greater than 5% by weight of the mixture; said absorbent article being characterized by an absorbency greater than about 5 g/g, a Gurley stiffness less than 400 mg and a caliper less than about 4 mm; and wherein said aqueous liquid absorbing material has a first surface that is arranged in abutting relationship to said garment faceable layer and a second surface that is arranged in abutting relationship to a surface of said liquid impermeable body faceable layer. The claim stands rejected under 35 U.S.C. § 103(a) as unpatentable over Luizzi (EP 1 013 291 A1, June 28, 2000) and Harada et al. (US 5,853,867, December 29, 1998). We reverse. Issue Claim 26 is directed, in relevant part, to an absorbent article with a layer of aqueous liquid absorbing material comprising a homogeneous mixture of a hot melt adhesive and an aqueous liquid absorbing polymer (which we will call the “absorbent hot melt layer” for the sake of simplicity), wherein the absorbent hot melt layer is disposed between “a liquid permeable body faceable layer” and “a liquid impermeable garment faceable layer,” and is in an “abutting relationship” with each. Appeal 2010-008418 Application 10/444,605 3 The Examiner rejected claim 26 as obvious over the teachings of Luizzi and Harada, 1 primarily on the basis of a finding that Luizzi, in Figures 6 and 7, discloses an absorbent article with an absorbent hot melt layer 640 “arranged in abutting relationship to . . . said liquid permeable body faceable layer 630” (Ans. 4). Appellants contend that “layer 630 is an internal absorbent layer of the article disclosed in Luizzi and is not „body faceable‟ whatsoever” (App. Br. 8). The issue raised by this appeal is whether the evidence of record supports the Examiner‟s finding that Luizzi‟s absorbent element 630 is a “body faceable layer.” Findings of Fact 1. The “body faceable layer” shown in the drawings of the present Specification is an external layer. For example, Figures 5 and 6 of the Specification, reproduced immediately below, depict absorbent article 510 with “body faceable layer 560 having a body faceable surface 561” (Spec. 16: 14-15): 1 The Examiner cites Harada as support for findings that are not at issue here, so we need not discuss Harada further. Appeal 2010-008418 Application 10/444,605 4 Figures 5 and 6 of the Specification depict absorbent article 510 with “body faceable layer 560 having a body faceable surface 561” (Spec. 16: 14-15). In addition, the Specification teaches that the body faceable layer should be “soft feeling, and non-irritating to a user‟s skin” (id. at 11: 16-19), and may “employ adhesives on its body faceable surface for attach[ment] . . . directly to a user‟s skin” (id. at 12: 2-4). 2. Luizzi‟s Figure 7, reproduced immediately below, depicts a cross section of sanitary napkin 601 with “an upper, body facing, cover layer 610, a lower garment facing, barrier layer 620 and absorbent element 630 between the cover layer 610 and the barrier layer 620” (Luizzi ¶ 25): Luizzi‟s Figure 7 depicts a cross section of sanitary napkin 601 with “an upper, body facing, cover layer 610, a lower garment facing, barrier layer 620 and absorbent element 630” (id.). In addition, “[l]iquid absorbing hot melt adhesive 640 [sic, 40?] adheres the barrier layer 620 to the absorbent element 630 in a multi-line coated absorbency zone 650” (id.). Appeal 2010-008418 Application 10/444,605 5 Discussion The Examiner‟s rationale is that Luizzi‟s absorbent element 630 is “a body-faceable layer, [because] the layer 630 has two surfaces, one facing the wearer‟s body in use and one facing the garment in use . . . Since at least a portion of the layer 630, the body-facing surface, faces the body during use at all times, the entire layer is thus necessarily body-faceable” (Ans. 5). Nevertheless, we find that the term “body faceable layer,” as used in the context of the Specification, drawings, and claim 26, denotes an external layer that contacts the body in use (FF1). Therefore, we agree with Appellants that Luizzi‟s “absorbent element” 630 (which is sandwiched between “upper, body facing, cover layer 610” and “[l]iquid absorbing hot melt adhesive 640”) is not a “body faceable layer” as that term would be understood by one of ordinary skill in this art reasonably interpreting Appellants‟ claims in light of the Specification. If the term “body faceable layer” is to have any meaning at all in the context of the present invention, it must indicate more than just relative spatial orientation - otherwise it would apply to virtually any layer in the claimed absorbent article. Following the Examiner‟s rationale to its logical conclusion, Luizzi‟s “absorbent layer” 630 would also be a “garment faceable layer,” since one of its surfaces would necessarily “fac[e] the garment in use” (Ans. 5). In any case, Luizzi describes its external cover layer 610, not its absorbent layer 630, as “body facing” (Luizzi ¶ 25; FF2). Appeal 2010-008418 Application 10/444,605 6 SUMMARY The evidence of record does not support the Examiner‟s finding that Luizzi‟s absorbent element 630 is a “body faceable layer,” and the Examiner has provided no alternative rationale for modifying Luizzi to arrive at the particular configuration of layers required by claim 26. Accordingly, the rejection of claim 26 under 35 U.S.C. § 103(a) as unpatentable over Luizzi and Harada is reversed. REVERSED alw