Ex Parte Feller et al

Board of Patent Appeals and Interferences

Jun 19, 2009

10600774 (B.P.A.I. Jun. 19, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte BRYAN KEITH FELLER and MATTHEW JOSEPH MACURA
__________

Appeal 2009-002682
Application 10/600,774
Technology Center 3700
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Decided:1June 19, 2009
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Before DONALD E. ADAMS, ERIC GRIMES, and MELANIE L.
McCOLLUM, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims 1, 4-6, 10,
11, 15, and 16, all of the pending claims, which are directed to an absorbent

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-002682
Application 10/600,774

article. The Examiner has rejected the claims as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We reverse.
STATEMENT OF THE CASE
The Specification discloses an “absorbent article capable of reliably
achieving an improved body-fitting profile” (Spec. 3:2-3).
Claims 1, 4-6, 10, 11, 15, and 16 are on appeal. Claim 1 is
representative and reads as follows:
Claim 1: An absorbent article comprising,
a. a fluid permeable facing layer having a first elastic modulus,
wherein the facing layer comprises a topsheet and a secondary topsheet;
b. an absorbent core joined to the facing layer, the absorbent core
having a second elastic modulus;
c. wherein at equal strain from about 1% to about 5% the first elastic
modulus is greater than the second elastic modulus and wherein the facing
layer is joined to the absorbent core at substantially the entirety of their
respective interfacial surfaces; and
d. a fluid impermeable backsheet joined to the facing layer.

The claims stand rejected under 35 U.S.C. § 103(a) as follows:
• claims 1, 4-6, and 11 in view of Weisman2 and Takahashi;3
• claim 10 in view of Weisman, Takahashi and Cinelli;4 and
• claims 15 and 16 in view of Weisman, Takahashi and Ohashi.5

2 Weisman et al., US 4,865,596, Sep. 12, 1989
3 Takahashi et al., US 6,329,465 B1, Dec. 11, 2001
4 Cinelli et al., US 2002/0013565 A1, Jan. 31, 2002
5 Ohashi et al., US 2002/0065498 A1, May 30, 2002
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Application 10/600,774

OBVIOUSNESS I
Issue
The Examiner has rejected claims 1, 4-6, and 11 under 35 U.S.C.
§ 103(a) as being obvious in view of Weisman and Takahashi.
The Examiner finds that Weisman discloses an absorbent article
meeting most of the limitations of claim 1, but “Weisman does not teach a
facing layer that comprises a topsheet and a secondary topsheet” (Ans. 3-4).
The Examiner finds that “Takahashi teaches a multi-layer liner material
comprised of ethylene copolymer layers … [and] thus Takahashi teaches a
facing layer material comprising a topsheet and a secondary topsheet” (id. at
4). The Examiner also finds that “Takahashi teaches that this film has
excellent transparency, mechanical strength and moldability,” and reasons
that it would have been obvious to one of ordinary skill in the art to
substitute the Takahashi liner material for the Weisman liner material “to
provide a facing layer with increased transparency, strength and
moldability” (id. at 4).
Appellants contend that the Examiner erred in concluding that one of
skill in the art would have been motivated to substitute Takahashi’s
multilayer film for the facing layer of Weisman’s absorbent article because,
although the multilayer film of Takahashi may be oxygen permeable, it is
not liquid permeable (App. Br. 4).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner’s conclusion that one of skill in the art would have
been motivated to substitute the multilayer film of Takahashi for the facing
layer of Weisman’s absorbent article?
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Application 10/600,774

Findings of Fact
1. Weisman discloses an absorbent composite structure that
comprises blown microfibers, nonabsorbent synthetic staple fibers, “a fluid
control system in particle form,” and a “hydrophilizing agent” (Weisman,
col. 2, ll. 36-44).
2. Weisman discloses “disposable absorbent articles which utilize the
absorbent composite structures herein as at least a portion of the fluid-
absorbing ‘core’ element. … Examples of absorbent articles include
disposable diapers, sanitary napkins,” etc. (id. at col. 18, ll. 18-25).
3. Weisman discloses that “[a]bsorbent articles herein will frequently
comprise a substantially liquid impervious backing sheet, a liquid pervious,
relatively hydrophobic topsheet and an absorbent core” (id. at col. 18, ll. 31-
34).
4. Weisman discloses that “[r]elatively hydrophobic, liquid pervious
topsheets can comprise any material such as polyester, polyolefin, rayon and
the like which is substantially porous and permits a fluid to readily pass
therethrough into the underlying absorbent core” (id. at col. 18, ll. 39-44).
5. Takahashi discloses “an ethylene copolymer composition having
excellent moldability and capable of producing films and molded products
of excellent transparency and mechanical strength” (Takahashi, col. 1, l. 66
through col. 2, l. 2).
6. Takahashi discloses that “molded products according to the
invention are formed from the ethylene copolymer composition” and that
[e]xamples of the molded products include single-layer films,
multi-layer films, injection molded products, extrusion molded
products, fibers, foam products and electric wire sheaths. More
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Application 10/600,774

specifically, there can be mentioned agricultural films (single-
layer, multi-layer), water barrier sheets, multi-layer films,
packaging films (multi-layer films, stretch films, heavy-duty
packaging films), multi-layer barrier films, [etc.].

(Id. at col. 32, l. 56 through col. 33, l. 4.)
7. Takahashi discloses that a “water barrier sheet is formed from the
ethylene copolymer composition” and that the “water barrier sheet may be a
multi-layer sheet wherein the outer layer or the inner layer made of the
composition … is combined with other substrates, reinforcing materials or
other drainage materials” (id. at col. 38, ll. 23-31).
8. Takahashi discloses that the
single-layer film is most adapted for use in the stretch
overwrapping and skin packaging methods. As required for the
stretch overwrapping, the single-layer film produced from the
ethylene copolymer composition … exhibits surprisingly
excellent oxygen permeability.

Oxygen permeation is particularly useful in the stretch
wrapping of individual cuts of red meat … , where the oxygen
permeation allows fresh red meat to “bloom” to the desired
bright red color.
(Id. at col. 45, ll. 14-27.)
9. Takahashi discloses “a multi-layer film structure [that] comprises
at least 3 layers (e.g., an A/B/A structure), wherein each outer layer
comprises at least one ethylene copolymer composition ... , and at least one
core layer or hidden layer comprises high-pressure low-density
polyethylene” (id. at col. 46, ll. 15-23).
10. Takahashi discloses that “articles which can be produced by the
use of the novel elastic fiber and fabric disclosed in the present specification
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Application 10/600,774

include composite fabric articles desired to have elastic parts, such as
diapers” for which “elasticity is desired for a west [sic] band part to prevent
slip-down of diaper and a leg band part to prevent leakage” (id. at col. 73, ll.
19-24).
11. Takahashi discloses that “[b]y the use of the novel elastic fiber
and fabric disclosed in this specification, structures having a combination of
elasticity and air permeability can be manufactured” (id. at col. 73, ll. 28-
30).
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).
“In determining whether obviousness is established by combining the
teachings of the prior art, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.” In re
GPAC Inc., 57 F.3d 1573, 1581 (Fed. Cir. 1995) (internal quotations
omitted).
Analysis
Claim 1 is directed to an absorbent article comprising, among other
things, a fluid permeable facing layer comprising a topsheet and a secondary
topsheet.
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Appeal 2009-002682
Application 10/600,774

Appellants contend that the Examiner erred in concluding that one of
skill in the art would have been motivated to substitute the multilayer film of
Takahashi for the facing layer of Weisman’s absorbent article because,
although the multilayer film of Takahashi may be oxygen permeable, it is
not liquid permeable (App. Br. 4).
Appellants’ arguments are persuasive. Weisman discloses an
absorbent article. Takahashi discloses an ethylene copolymer composition
that may be used to make a multilayer film with at least one layer
comprising the ethylene copolymer composition. However, Takahashi
reasonably appears to describe the films as water impermeable because
Takahashi discloses that the film can be used to package red meat and to
form a water barrier sheet. The Examiner has not pointed to any disclosure
in Takahashi that shows the films are water permeable, nor has the Examiner
adequately explained why one of skill in the art would have been motivated
to substitute the liquid impermeable multi-laminate layer of Takahashi for
the inner layer (i.e., facing layer) of Weisman. Such a substitution would
result in an absorbent article with an absorbent core, but with liquid
impermeable layers on both faces.
In response to Appellants’ arguments, the Examiner reasons that
Takahashi discloses “that the elastic fiber and fabric disclosed can be used in
the production of composite articles such as diapers” (Ans. 7). The
Examiner also points to Takahashi’s disclosure that the elastic fiber and
fabric are useful for structures described in Wade (U.S. Patent 2,957,512),
and reasons that the material of Wade “can certainly be used as a topsheet
material” (Ans. 7)
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Application 10/600,774

We are not persuaded by the Examiner’s reasoning. The diaper
references in Takahashi cited by the Examiner might suggest the use of the
ethylene copolymer composition for elastic portions of a diaper but not the
facing layer. Likewise, Takahashi only suggests using its elastic fiber and
fabric in the products described by Wade. Takahashi states that, for
example, one of Wade’s elastic components “can be replaced by the novel
elastic fiber and fabric” (Takahashi, col. 73, ll. 33-36). Whether Wade
discloses a material that can be used as a topsheet is immaterial because the
Examiner’s rejection does not rely on Wade’s disclosure.
The rejection of claim 1 as being obvious in view of Weisman and
Takahashi is reversed. The rejection of claim 4-6 and 11, which depend
from claim 1, also is reversed for the reasons discussed above.
Conclusions of Law
The evidence of record does not support the Examiner’s conclusion
that one of skill in the art would have been motivated to substitute the
multilayer film of Takahashi for the facing layer of Weisman’s absorbent
article.
OBVIOUSNESS II
The Examiner has rejected claim 10 under 35 U.S.C. § 103(a) as
being obvious in view of Weisman, Takahashi and Cinelli.
Claim 10 depends from claim 1. The Examiner relies on Weisman
and Takahashi as discussed above, and provides Cinelli to supply dependent
claim limitations. As discussed above, however, the Examiner has not
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Application 10/600,774

adequately explained how Weisman and Takahashi would have suggested
the absorbent article of claim 1.
Although the Examiner cites Cinelli as disclosing a multilaminate
facing layer (Ans. 5), the Examiner relied on Takashi in combination with
Weisman for the elastic modulus requirements of claim 1 (i.e., at equal strain
from about 1% to about 5%, the elastic modulus of the facing layer is greater
than the elastic modulus of the absorbent layer) (see Ans. 3-4). Thus, even
assuming that Cinelli discloses a multilaminate facing layer that would be
obvious to use in Weisman’s diaper, the Examiner has not shown that the
combination would result in the invention of claim 1 or, by extension, claim
10. The rejection of claim 10 is reversed
OBVIOUSNESS III
The Examiner has rejected claims 15 and 16 under 35 U.S.C. § 103(a)
as being obvious in view of Weisman, Takahashi and Ohashi.
Claims 15 and 16 depend from independent claim 1. The Examiner
relies on the combination of Weisman and Takahashi as discussed above,
and provides Ohashi to supply dependent claim limitations. As discussed
above, however, the Examiner has not adequately explained how Weisman
and Takahashi would have suggested the absorbent article of claim 1, and
the rejection of claims 15 and 16 is reversed.
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Appeal 2009-002682
Application 10/600,774

SUMMARY
We reverse the rejection of claims 1, 4-6, 10, 11, 15, and 16 under 35
U.S.C. § 103(a) as being obvious based on the cited references.

REVERSED

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