Ex Parte Guidotti

Board of Patent Appeals and Interferences

Mar 7, 2012

10323665 (B.P.A.I. Mar. 7, 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.
10/323,665 12/20/2002 Ted Guidotti 018798-115 7121
7590 03/08/2012
BURNS, DOANE, SWECKER & MATHIS, L.L.P.
P.O. Box 1404
Alexandria, VA 22313-1404
EXAMINER
STEPHENS, JACQUELINE F
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
03/08/2012 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 TED GUIDOTTI
__________

Appeal 2010-008517
Application 10/323,665
Technology Center 3700
__________

Before TONI R. SCHEINER, FRANCISCO C. PRATS, and
STEPHEN WALSH, Administrative Patent Judges.

PRATS, Administrative Patent Judge.

DECISION ON APPEAL
This appeal under 35 U.S.C. § 134 involves claims to an absorbent
article, such as a diaper or sanitary towel. The Examiner entered rejections
for obviousness.
We have jurisdiction under 35 U.S.C. § 6(b). We reverse.
STATEMENT OF THE CASE
Appellant’s invention is directed to a disposable absorbent article,
such as a diaper, in which the central portion of the absorbent structure is
thinner than the end portions (see Spec. [0032]). While the central portion is
thinner, it is also formed of material which is denser than the end portions
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(id. at [0009]), yielding a structure “capable of rapidly receiving a large
quantity of liquid at the same time as it is thin, flexible and discreet to wear”
(id. at [0008]).
Claims 5-13 and 19-29 stand rejected and appealed (App. Br. 4).
Claim 19 is representative and reads as follows:
19. An absorbent structure for an absorbent article, the
absorbent article comprising a portion of a first absorbent material and
two portions of a second absorbent material,
wherein, a hypothetical line parallel to a longitudinal direction
of the absorbent structure passes through, sequentially, a first portion
of the two portions of the second absorbent material, the portion of the
first absorbent material, and a second portion of the second absorbent
material, the portion of the first absorbent material being between the
portions of the second absorbent material,
wherein an average density of the portion of the first absorbent
material, at least in a dry state, is higher than an average density of the
portions of the second material, and
wherein the portion of the first absorbent material, at least in the
dry state, has a lower basis weight than the portions of the second
absorbent material.

The following rejections are before us for review:
(1) Claims 5-7, 9-13, and 19-29, under 35 U.S.C. § 103(a) as obvious
over Cree
1
and Glaug
2
(Ans. 4-7); and
(2) Claim 8, under 35 U.S.C. § 103(a) as obvious over Cree, Glaug,
and Hsueh
3
(Ans. 8).

1
U.S. Patent No. 5,591,149 (issued January 7, 1997).
2
U.S. Patent No. 5,601,544 (issued February 11, 1997).
3
U.S. Patent No. 5,536,264 (issued July 16, 1996).
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DISCUSSION
The Examiner found that, while Cree described an absorbent article
that was less dense in fluid target areas, Cree nonetheless taught that the
central portion could have different absorbent and/or physical properties as
compared to the side portions, and therefore, “the general conditions of the
claimed invention are present in the prior art” (Ans. 4). The Examiner
reasoned that an ordinary artisan would have considered it obvious to
“provide the absorbent structure of Cree with the claimed zoned density and
basis weight, since where the general conditions of a claim are disclosed in
the prior art, it is not inventive to discover the optimum or workable ranges
by routine experimentation” (id. at 4-5 (citing In re Aller, 220 F.2d 454, 456
(CCPA 1955)).
The Examiner additionally found that, while Glaug taught the
desirability of having a central portion with a lower density and a higher
basis weight than the side portions, Glaug also taught that “the central
portion can have a higher, lower or the same basis weight; and a higher,
lower, or the same density as compared to the side portions (col. 7, lines 37-
48)” (Ans. 5). Thus, the Examiner reasoned, an ordinary artisan would have
considered it obvious to “modify Cree with the relationship of the first
absorbent density and basis weight as taught in Glaug, since both references
teach the desirability of having a higher density absorbent in the target area”
(id.).
“In proceedings before the Patent and Trademark Office, the
Examiner bears the burden of establishing a prima facie case of obviousness
based upon the prior art.” In re Fritch, 972 F.2d 1260, 1265 (Fed. Cir.
1992).
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In KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415 (2007), while the
Supreme Court emphasized “an expansive and flexible approach” to the
obviousness question, it also reaffirmed the importance of determining
“whether there was an apparent reason to combine the known elements in
the fashion claimed by the patent at issue.” Id. at 418 (emphasis added).
When interpreting claims, the PTO must apply “the broadest
reasonable meaning of the words in their ordinary usage as they would be
understood by one of ordinary skill in the art, taking into account whatever
enlightenment by way of definitions or otherwise that may be afforded by
the written description contained in the applicant’s specification.” In re
Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
In this case, we agree with Appellant that the Examiner has not
adequately explained why the cited references would have suggested an
absorbent structure configured as claimed.
Specifically, claim 19 recites an absorbent structure which is divided
into three portions along a hypothetical line drawn parallel to the
longitudinal direction of the structure. The central of the three portions is
composed of an absorbent material that, at least in a dry state, has a higher
average density than the material constituting the other two portions, yet also
has a lower basis weight than the material constituting the two end portions.
Appellant’s Figure 2, reproduced below, illustrates an embodiment
encompassed by claim 19:

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Figure 2 shows absorbent structure 3, with longitudinal line III-III
passing across first end portion 12, central portion 11, and second end
portion 13 (Spec. [0028]). We also reproduce Appellant’s Figure 3 below:

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Figure 3 shows “a longitudinal section through the absorbent structure
3 along the line III-III in Figure 2” (Spec. [0032]). Thus, as the
Specification explains, Figure 3 illustrates how the claimed arrangement of a
denser, yet lower basis weight central portion, can be achieved:
By virtue of the liquid-receiving layer 15 being thinner than the
liquid-storing layer 16, a lower basis weight is obtained for the
material in the central portion 11 than for the material in the end
portions 12, 13 in spite of that fact that the average density of
the material in the central portion 11 is higher than the average
density of the material in the end portions 12, 13.

(Spec. [0032].) The other independent claims, claims 20 and 24, also
require the longitudinally central portion of the absorbent structure to be
denser than the end portions, yet have a lower basis weight, like claim 19.
In contrast to the claimed arrangement, Cree explicitly discloses that
the central fluid target areas of the absorbent material of its article should be
less dense than surrounding sections of the absorbent material:
Densification may be applied to the entire absorbent core 32 or
only to selected portions. Patterned densification allows
tailoring of the fluid handling properties to a specific need. For
example, the density may be very low in the fluid target area to
maximize fluid acquisition speed, and density may be very high
near the coke edges to maximize fluid wicking.

(Cree, col. 27, ll. 8-14.)
While the Examiner urges that it would have been obvious to optimize
the placement of the denser and less dense sections of Cree’s article, the
Examiner has not adequately explained the basis for such an optimization.
Absent some explanation as to what functional properties of Cree’s article an
ordinary artisan would have optimized to arrive at the claimed structure, we
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are not persuaded that the Examiner has shown that Cree would have
rendered the claimed articles obvious.
We note, as the Examiner indicates, that Glaug discloses that its
absorbent article can have central and side portions of different densities and
base weights:
Absorbent central portion 74 and absorbent side portions 76 can
have the same or different absorbent and/or physical
characteristics. For example, absorbent central portion 74 can
have a higher, lower, or the same basis weight as one of the
absorbent side portions 76, or absorbent central portion 74 can
have a higher, lower, or the same density as one of the
absorbent side portions 76.

(Glaug, col. 7, ll. 34-41; see also id. at Figures 5 and 9.)
However, unlike the claimed articles, which are divided into distinct
central and end portions across the longitudinal axis paralleling the long
sides of the absorbent structures (see Appellant’s Figures 2 and 3, above),
Glaug’s distinct absorbent central portion 74 and side portions 76 are
divided across the transverse axis of the article, paralleling the short side of
the structure (see id, e.g., at Figure 9). Accordingly, the Examiner’s
arguments (Ans. 9-10) do not persuade us that an ordinary artisan viewing
the claims in light of the Specification would have considered it reasonable
to interpret the claim recitation of a “line parallel to a longitudinal direction
of the absorbent structure” as encompassing the transverse axis of Glaug’s
article.
Thus, even assuming for arguments’ sake that Glaug would have
prompted an ordinary artisan to make the central portion of its article denser
than the side portions, and also give the central portion a lower basis weight,
arranging the article in that manner would not have resulted in the claimed
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configuration, because Glaug’s central and side portions do not correspond
to the central and end portions of the claimed articles, as an ordinary artisan
would have reasonably interpreted Appellant’s claims.
In sum, we are not persuaded that the Examiner has adequately
explained why an ordinary artisan would have been prompted by Cree and
Glaug to prepare an absorbent structure having the configuration required by
claims 19, 20, and 24. We therefore reverse the Examiner’s obviousness
rejection of those claims, and their dependents, over those references.
While the Examiner cited Hsueh as evidence of the obviousness of
using regenerated cellulose, as recited in claim 8, in articles such as
disclosed by Cree and Glaug, (Ans. 8), the Examiner points to no teachings
that remedy the deficiencies discussed above as to independent claim 20,
from which claim 8 ultimately depends. We therefore reverse the
Examiner’s rejection of claim 8 as well.

SUMMARY
We reverse the Examiner’s obviousness rejection of claims 5-7, 9-13,
and 19-29 over Cree and Glaug.
We also reverse the Examiner’s rejection of claim 8 over Cree, Glaug,
and Hsueh.

REVERSED

cdc