Ex Parte Gagliardi et al

Board of Patent Appeals and Interferences

Apr 20, 2010

10346962 (B.P.A.I. Apr. 20, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte IVANO GAGLIARDI and GIOVANNI CARLUCCI
____________

Appeal 2009-006369
Application 10/346,962
Technology Center 3700
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Decided: April 20, 2010
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Before JOHN C. KERINS, STEFAN STAICOVICI, and
FRED A. SILVERBERG, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Ivano Gagliardi and Giovanni Carlucci (Appellants) appeal under 35
U.S.C. § 134 (2006) from the Examiner’s decision rejecting claims 1-14.
We have jurisdiction over this appeal under 35 U.S.C. § 6 (2006).

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THE INVENTION
Appellants’ invention relates to a dark colored absorbent article
including a dark colored topsheet, a backsheet, and an underlying layer
positioned between the topsheet and the backsheet. The underlying layer
includes a light colored layer 5 (white absorbent tissue core) that is visible at
the peripheral edge of the article. In use, when the article is loaded with
bodily fluids the color of the light colored layer 5 changes color to provide a
loading indicator. Spec. 1, ll. 13-21; Spec. 28, ll. 10-25; and fig. 2.
Claim 1, the sole independent claim, is representative of the claimed
invention and reads as follows:
1. An absorbent article for absorbing
liquid with a loading indicator, comprising a dark
coloured topsheet, a backsheet and an underlying
layer positioned between said topsheet and said
backsheet, wherein said topsheet has an L Hunter
value of less than 60, said underlying layer having
a topsheet-facing surface and a backsheet-facing
surface, wherein said topsheet, said backsheet and
said underlying layer are all coextensive to have a
common peripheral edge, said underlying layer
comprising a light layer having an L Hunter value
of 60 or more, said light layer providing said
loading indicator.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Visscher US 5,261,899 Nov. 16, 1993
Sutton US 6,264,640 B1 Jul. 24, 2001

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The following rejections are before us for review:
The Examiner rejected claims 1-10 and 14 under 35 U.S.C. § 102(b)
as anticipated by Visscher.
The Examiner rejected claims 11 and 12 under 35 U.S.C. § 103(a) as
unpatentable over Visscher.
The Examiner rejected claim 13 under 35 U.S.C. § 103(a) as
unpatentable over Visscher and Sutton.

THE ISSUE
Appellants argue that Visscher fails to teach an absorbent article
having a topsheet, a backsheet, and an underlying layer that “are all
coextensive to have a common peripheral edge,” as called for by
independent claim 1. Br. 3. Appellants argue that because the backsheet of
Visscher is folded up and over both the underlying layer (i.e., absorbent pad
3) and the topsheet; the topsheet, backsheet and underlying layer of Visscher
do not have a “common peripheral edge,” as required by claim 1. Br. 3-4.
Moreover, Appellants argue that because the peripheral edges of the topsheet
and backsheet of Visscher extend beyond the peripheral edge of the
absorbent pad (i.e., the underlying layer), the topsheet, backsheet, and
underlying layer of Visscher are not “coextensive,” as recited in claim 1.
The Examiner responds that because the topsheet 2, backsheet 4, and
the absorbent core 3 (underlying layer) of the absorbent article 1 of Visscher
extend to the same width along a peripheral edge, namely, the edge
associated with side flaps 5, the layers are considered to be coextensive.
Ans. 3. The Examiner further asserts that the topsheet 2, backsheet 4, and
the absorbent core 3, “all have a common peripheral edge along the side of
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the article associated with the side flaps 5.” Ans. 8. The Examiner takes the
position that, “[t]he use of [the term] ‘coextensive’ does not require the
elements to all terminate at the same location.” Id.
Accordingly, the issue presented for our consideration in the instant
appeal is whether the topsheet 2, backsheet 4, and absorbent core 3
(underlying layer) of the absorbent article of Visscher “have a common
peripheral edge,” as required by claim 1.

SUMMARY OF DECISION
We REVERSE.

OPINION
When construing claim terminology in the United States Patent and
Trademark Office, claims are to be given their broadest reasonable
interpretation consistent with the specification, reading claim language in
light of the specification as it would be interpreted by one of ordinary skill in
the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004).
Appellants’ Specification does not expressly define the terms
“peripheral” and “edge” or otherwise indicate that these terms are used in a
manner other than their ordinary and customary meaning. Accordingly, we
construe each of these terms in accordance with its ordinary and customary
meaning. We find that an ordinary and customary meaning of the term
“periphery” that is most consistent with the Specification and the
understanding of those of ordinary skill in the art is “the external boundary
or surface of a body.” MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (10th
Ed. 1997). Further, we find that an ordinary and customary meaning of the
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term “edge” that is most consistent with the Specification and the
understanding of those of ordinary skill in the art is “the line where an object
or area begins or ends: BORDER.” MERRIAM WEBSTER’S COLLEGIATE
DICTIONARY (10th Ed. 1997). As such, we construe the phrase “peripheral
edge,” as applied to a sheet (i.e., topsheet, backsheet, underlying layer), to
mean a line where the external boundary or surface of the sheet begins.
As shown above, claim 1 requires that the topsheet, backsheet, and
underlying layer have a “common peripheral edge.” It is our finding that
Visscher teaches an absorbent article including a topsheet 2, an absorbent
core 3 (underlying layer), and a backsheet 4 that is folded over and on top of
the topsheet 2 and the underlying layer 3 to form flaps 5. Visscher, col. 3, ll.
8-14 and fig. 1.
First, we note that when viewing the narrower side of the absorbent
article 1 of Visscher, as presented in Figure 1 of Visscher, the backsheet 4
extends beyond the facesheet 2 and the underlying layer 3. Accordingly, in
a first instance we find that the topsheet, backsheet, and underlying layer
along the narrower side of the absorbent article of Visscher do not have a
common line where the external boundary of the topsheet, backsheet, and
underlying layer begins, and hence do not have a “common peripheral edge”
as called for by independent claim 1.
Second, we further note that when viewing the absorbent article 1 of
Visscher, as presented in Figure 1 of Visscher, along the side associated with
side flaps 5, the line where the external boundary of the backsheet begins is
located inward to the lines where the external boundaries of the topsheet 2
and the underlying layer 3, respectively, begin. In other words, the
peripheral edge of the backsheet is located inward with respect to the
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peripheral edges of the topsheet 2 and the underlying layer 3. Accordingly,
the topsheet, backsheet, and underlying layer along the side associated with
side flaps 5 of the absorbent article of Visscher do not have a common line
where the external boundary of the topsheet, backsheet, and underlying layer
begins, and hence do not have a “common peripheral edge,” as called for by
in independent claim 1.
In conclusion, because we find that topsheet 2, backsheet 4, and
underlying layer 3 (absorbent core) of absorbent article 1 of Visscher do not
have a “common peripheral edge,” Visscher does not teach all the elements
of independent claim 1. Accordingly, the rejection of claims 1-10 and 14
under 35 U.S.C. § 102(b) as anticipated by Visscher cannot be sustained.
With respect to claims 11 and 12, the Examiner’s proposed
modification of the disclosure of Visscher (Ans. 6-7) does not cure the
deficiencies of Visscher as discussed above. Accordingly, the rejection of
claims 11 and 12 under 35 U.S.C. § 103(a) as unpatentable over Visscher
likewise cannot be sustained.
Similarly, with respect to claim 13, the disclosure of Sutton does not
cure the deficiencies Visscher as discussed above. Therefore, the rejection
of claim 13 under 35 U.S.C. § 103(a) as unpatentable over Visscher and
Sutton also cannot be sustained.

CONCLUSION
Visscher does not teach an absorbent article including a topsheet 2, a
backsheet 4, and an underlying layer 3 (absorbent core) having a “common
peripheral edge,” as required by claim 1.

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DECISION
The Examiner’s decision to reject claims 1-14 is reversed.

REVERSED

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