Ex Parte Hendren et al

Board of Patent Appeals and Interferences

Sep 2, 2010

11118046 (B.P.A.I. Sep. 2, 2010)

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.
11/118,046 04/29/2005 Cynthia H. Hendren 17,515B.1 8270
23556 7590 09/02/2010
KIMBERLY-CLARK WORLDWIDE, INC.
Tara Pohlkotte
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
KIDWELL, MICHELE M
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
09/02/2010 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 CYNTHIA H. HENDREN, KATHLEEN I. RATLIFF, ERICA L.
MULLEN, MARIA E. DE LEON and SUSAN M. WEYENBERG
____________________

Appeal 2009-009136
Application 11/118,046
Technology Center 3700
____________________

Before JENNIFER D. BAHR, MICHAEL W. O’NEILL, and
FRED A. SILVERBERG, Administrative Patent Judges.

SILVERBERG, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-009136
Application 11/118,046

2
STATEMENT OF THE CASE
Cynthia H. Hendren et al. (Appellants) seek our review under
35 U.S.C. § 134 of the final rejection of claims 1-3 and 5-20. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

THE INVENTION
Appellants’ claimed invention is directed to a disposable absorbent
garment including a garment shell and an absorbent assembly (Spec. 2-3:
para. [0007]).
Claim 1, reproduced below, is representative of the subject matter on
appeal.
1. A disposable absorbent garment for wear about a wearer's
waist, said disposable absorbent garment comprising:
a garment shell configured for encircling the wearer's waist and
having a front waist region, a front waist end at said front waist
region, a back waist region, and a back waist end at said back waist
region, the garment shell comprising a front panel assembly having
laterally opposite side margins, and a back panel assembly having
laterally opposite side margins, the garment shell further having a
shell waist band located at the front and back waist end thereof;
an absorbent assembly disposed within the garment shell and
constructed to take in and retain body exudates released by the wearer,
the absorbent assembly having a front waist region in juxtaposed
relation with the front waist region of the garment shell, a back waist
region in opposed relationship with the back waist region of the
garment shell, a crotch region extending longitudinally between and
interconnecting the front waist region and the back waist region, a
front waist end with a front attachment zone and a back waist end
with a rear attachment zone, the front attachment zone of the
absorbent assembly being permanently attached to the front waist
region of the garment shell, and the rear attachment zone of the
Appeal 2009-009136
Application 11/118,046

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absorbent assembly being permanently attached to the back waist
region of the garment shell;
a first belt and a second belt member, each said first and second
belt member extending between each of the laterally opposite outer
edges of the absorbent assembly to form an inner waist band;
wherein the absorbent assembly has laterally opposite outer
edges defining a width thereof, and the front attachment zone and the
rear attachment zone have a width that is about 1 percent to about 70
percent of the width of the absorbent assembly.

THE REJECTIONS
The following rejections by the Examiner are before us for review:
1. Claims 1-3, 5-11, 13-17, 19 and 20 are rejected under 35 U.S.C.
§ 102(b) as being anticipated by Rosch (WO 96/03950, published Feb.
15, 1996).
2. Claims 12 and 18 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Rosch.

ISSUE
The issue before us is whether the Examiner erred in finding that
Rosch describes two waist bands, as called for in independent claims 1, 15
and 19 (App. Br. 3-4).

ANALYSIS
Anticipation Rejection of claims 1-11, 13-17, 19 and 20
Appellants contend that Rosch does not describe two waist bands, as
called for in independent claims 1, 15 and 19 (App. Br. 3).
The Examiner found that Rosch describes two waist bands. In
particular, the Examiner found that Rosch describes an inner waist band and
Appeal 2009-009136
Application 11/118,046

4
a second waist band, that is, “[t]he inner waist band includes first and
second (252, 254) belt members that connect to areas (248, 250)” and “the
garment shell includes a second waist band (222).” (Emphasis added) (Ans.
5).
Independent claims 1 and 15 call for two waist bands, while
independent claim 19 calls for a waist band and an inner band.
Rosch describes a diaper 210, a front waist region 220, a back waist
region 222, and fasteners 252, 254 on back ear sections 248, 250 (p. 9, ll. 17-
23 and fig. 4).
The patent Specification does not assign or suggest a particular
definition to the word “band.” Therefore, in determining the ordinary and
customary meaning of the claim word “band” as viewed by a person of
ordinary skill in the art, it is appropriate to consult a general dictionary
definition of the word “band” for guidance. Comaper Corp. v. Antec, Inc.,
596 F.3d 1343, 1348 (Fed. Cir. 2010). The ordinary meaning of the word
“band” includes “a thin flat encircling strip esp. for binding: as a BELT.”2
Giving the word “band” its broadest reasonable interpretation
consistent with the Specification, an encircling strip, we find that Rosch’s
fasteners 252, 254 do not encircle anything and, therefore, cannot be
considered to be an inner waist band as found by the Examiner and as called
for in independent claims 1, 15 and 19. See In re Am. Acad. of Sci. Tech.
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
Since Rosch does not describe an inner band, we find that Rosch does
not describe two bands as called for independent claims 1, 15 and 19.

2 MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1996).
Appeal 2009-009136
Application 11/118,046

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Accordingly, we are constrained to reverse the rejection of
independent claims 1, 15 and 19. Likewise, we reverse the rejection of
claims 2-11, 13, 14, 16, 17 and 20 which depend from claims 1, 15 and 19,
respectively.
Obviousness Rejection of claims 12 and 18
Appellants restate that Rosch does not describe two waist bands.
Appellants contend that a person having ordinary skill in the art reading
Rosch would not be led to add a second waist band (App. Br. 4).
We concluded supra that Rosch, contrary to the Examiner’s finding,
does not describe two waist bands. The Examiner’s conclusion of
obviousness is based on that errant fact finding.
Therefore, we are constrained to reverse the rejection of claims 12 and
18.

CONCLUSION
The Examiner has erred in finding that Rosch describes two waist
bands, as called for in independent claims 1, 15 and 19.

DECISION
The decision of the Examiner to reject claims 1-3 and 5-20 is
reversed.

REVERSED

Appeal 2009-009136
Application 11/118,046

6
mls

KIMBERLY-CLARK WORLDWIDE, INC.
TARA POHLKOTTE
2300 WINCHESTER RD.
NEENAH, WI 54956