Ex Parte Febo et al

Patent Trial and Appeal Board

Dec 7, 2012

10412846 (P.T.A.B. Dec. 7, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte PIETRO FEBO and LUIGI MARINELLI
__________

Appeal 2011-001858
Application 10/412,846
Technology Center 3700
__________

Before TONI R. SCHEINER, 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 a disposable
absorbent article. The Examiner entered rejections for anticipation and
obviousness.
We have jurisdiction under 35 U.S.C. § 6(b). We reverse.
STATEMENT OF THE CASE
Claims 1-8 stand rejected and appealed (App. Br. 3).
1
Claim 1, the
only independent claim, recites a disposable absorbent article that has a
unitary absorbent core composed of at least three distinct layers of material

1
Appeal Brief entered April 20, 2007.
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Application 10/412,846

2
thermally bonded together without the use of adhesive (App. Br. 19-20
(claim 1)).
The core‟s claimed unitary construction is said to provide “an
unsurpassed masking effect for the absorbent structure” (Spec. 12). Thus,
liquids “will penetrate into the structure but be distributed within the
structure, thereby displaying on the outer surface a reduced visibly
detectable stain size for the same kind of deposition when compared with
conventional structures or even the same combination of layers but
adhesively attached to each other” (id.).
The following rejections are before us for review:
(1) Claims 1 and 2, under 35 U.S.C. § 102(e) as anticipated by Graef
2

(Ans. 4-6);
(2) Claims 3, 4, and 6, under 35 U.S.C. § 103(a) as being obvious over
Graef and Baer
3
(Ans. 7-8); and
(3) Claims 5, 7, and 8, under 35 U.S.C. § 103(a) as obvious over
Graef (Ans. 8-10).
ANTICIPATION
We agree with Appellants that the Examiner has not made out a prima
facie case that Graef anticipates claim 1.
As Appellants point out (see App. Br. 4-6), the garment-facing outer
layer of claim 1‟s absorbent core “is provided by softener treated cellulose
fibers having a weight fraction of the overall core of 30%-50%” (App. Br.
19).

2
U.S. Patent App. Pub. No. 2002/0007169 A1 (published January 17, 2002).
3
WO 00/74620 A1 (published December 14, 2000).
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Application 10/412,846

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In contrast, the Examiner found that the layer 14 of Graef‟s absorbent
core, which corresponds to the garment-facing layer of claim 1‟s absorbent
core, is composed of softener treated cellulose fibers “having a weight
fraction of the overall core of 3-5.3%” (Ans. 5). Thus, based on the
Examiner‟s own finding, the softener treated cellulose fibers urged as being
present in the garment-facing layer of Graef‟s absorbent core constitute a
significantly lower weight percentage of the overall core than claim 1
requires.
In response to Appellants‟ arguments, the Examiner finds that typical
basis weight values for topsheets and backsheets were known in the art and
argues, therefore:
Since overall basis weight is a sum of all the composite layers,
Overall basis weight = IS= stratum + 2nd stratum + 3r'j [sic,
3
rd
] stratum + topsheet + backsheet + any other layers‟ basis
weights. Thus, the second stratum/inner layer weight fraction =
(overall basis weight - 1st stratum - 3rd stratum - topsheet basis
weight - backsheet basis weight)/overall basis weight.

(Ans. 10.)
The Examiner further urges that “nowhere in the instant specification
has Appellant given a specific formula for the term „weight fraction‟ and
thus the „weight fraction‟ is equivalent to each layer‟s and/or fibers in that
respective layer‟s basis weight percentage of the total article basis weight”
(id. at 11).
We are not persuaded. As noted above, claim 1 explicitly requires the
garment-facing outer layer of claim 1‟s absorbent core to be “provided by
softener treated cellulose fibers having a weight fraction of the overall core
of 30%-50%” (App. Br. 19 (emphasis added)). The Examiner appears to
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Application 10/412,846

4
have incorrectly considered the fibers‟ weight in relation to the weight of an
entire article (including a hypothetical topsheet, a hypothetical backsheet,
and core) (Ans. 10). Claim 1 by its terms, however, requires that the fibers‟
weight percentage be based on a percentage in terms of the weight of the
overall core only. We are therefore not convinced that the Examiner
interpreted claim 1 reasonably in finding that Graef anticipated claim 1.
Turning to the reference itself, Tables 2 and 3 of Graef, which the
Examiner cited as evidence that Graef meets the limitation at issue (Ans. 5),
are described as providing the “compositions of representative composites”
(Graef [0056]). Graef‟s composites, in turn, correspond to the three-layer
absorbent core of claim 1 (see id. at [0055]).
As Appellants point out, and as seen in Tables 2 and 3, the basis
weight of Graef‟s “Third Stratum,” which undisputedly corresponds to the
garment-facing layer of claim 1‟s core, is consistently much less than the 30
to 50 weight percent of the overall core, as required by claim 1 (see Graef
[0058]-[0059] (Tables 2 and 3)). Indeed, the composite having the
composition most favorable to the Examiner‟s position, composite “I,” has a
third stratum with a basis weight of 40 gsm, with the overall basis weight of
the composite/core being 300 gsm, and with the matrix fibers asserted as
corresponding to the softener treated fibers of claim 1 being only 50 percent
by weight of the third stratum (see id. at [0059] (Table 3)).
Thus, as we agree with Appellants that Graef does not describe a
disposable article having all of the features of claim 1, we reverse the
Examiner‟s anticipation rejection of claim 1, and its dependent claim 2, over
Graef.

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OBVIOUSNESS – GRAEF AND BAER
In rejecting claims 3, 4, and 6 over Graef and Baer, the Examiner
cited Baer as evidence that an ordinary artisan would have considered it
obvious to use latex as a surface binder in Graef‟s absorbent core, as recited
in claim 3, that it would have been obvious to omit a surface binder from
Graef‟s absorbent core, as recited in claim 4, and that it would have been
obvious to include in Graef‟s core bicomponent fibers having a
polypropylene central portion an polyethylene coating, as recited in claim 6
(Ans. 7-8).
Each of claims 3, 4, and 6, depends ultimately or directly from claim
1. Thus, as the Examiner points to no teaching in Graef or Baer that
remedies the deficiency of Graef discussed above as to claim 1, we reverse
this rejection as well.
OBVIOUSNESS – GRAEF
In rejecting claim 5 as obvious over Graef by itself, the Examiner
concluded that an ordinary artisan would have considered claim 5‟s weight
percent distribution of bicomponent and cellulose/viscose fibers in the
wearer-facing first layer an obvious manner of routine optimization of the
components of Graef‟s absorbent core (Ans. 8-9). As to claim 7, the
Examiner found that it was well known in the art that curling fibers
increased absorbency, and that it therefore would have been obvious to use
such fibers in the outermost wearer-facing layer of Graef‟s absorbent core
(id. at 9). As to claim 8, the Examiner found that determining a suitable
fiber diameter would also have been a matter of routine optimization (id. at
9-10).
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Each of claims 5, 7, and 8 depends ultimately or directly from claim 1.
Thus, similar to the situation above, as the Examiner points to no teaching
that remedies Graef‟s deficiency as to the fiber content of the garment-facing
layer of claim 1‟s absorbent core, we reverse this rejection as well.
SUMMARY
The Examiner‟s anticipation and obviousness rejections are reversed.

REVERSED

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