Ex Parte Hughes et al

Board of Patent Appeals and Interferences

Jun 22, 2012

11118603 (B.P.A.I. Jun. 22, 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.
11/118,603 04/29/2005 Janis W. Hughes KCX-961 (21045) 6700
22827 7590 06/25/2012
DORITY & MANNING, P.A.
POST OFFICE BOX 1449
GREENVILLE, SC 29602-1449
EXAMINER
ZALUKAEVA, TATYANA
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
06/25/2012 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 JANIS W. HUGHES, VARUNESH SHARMA,
PRASAD SHRIKRISHNA POTNIS, GREGORY HALL,
THOMAS H. ROESSLER, PEIGUANG ZHOU, and
STEPHEN C. BAUMGARTNER
____________

Appeal 2010-006809
Application 11/118,603
Technology Center 3700
____________

Before KEN B. BARRETT, JAMES P. CALVE, and
REMY J. VANOPHEM, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the rejection of claims
1-20. App. Br. 2. We have jurisdiction under 35 U.S.C. § 6.
We REVERSE.
Appeal 2010-006809
Application 11/118,603

2
CLAIMED SUBJECT MATTER
Claim 1 is illustrative of the claimed subject matter on appeal:
1. An absorbent article comprising:
a chassis including an outer cover, a bodyside liner and an
absorbent structure, the absorbent structure being positioned in
between the outer cover and the bodyside liner, the chassis including a
front region, a crotch region, and a back region, the front region and
the back region defining a waist opening therebetween, the waist
opening defining a front waist edge and a back waist edge, the chassis
having a length extending in the longitudinal direction from the front
waist edge to the back waist edge, the chassis further comprising a
waist region surrounding the waist opening; and
a waist elastic member located along the waist region with a
first edge located at the front or back waist edge and a second edge
longitudinally opposite the first edge, the waist elastic member
positioned between the outer cover and the bodyside liner, the waist
elastic member having a length in the longitudinal direction that is at
least 25% of the length of the chassis, the waist elastic member
comprising an elastic film, the elastic film defining apertures
sufficient to allow fluid transmission therethrough wherein a plurality
of apertures are located along the length of the waist elastic member
including apertures proximal to the second edge.

REJECTIONS
Claims 1, 6-9, and 11-14 are rejected under 35 U.S.C. § 102(b) as
anticipated by Curro (US 6,452,063 B1; iss. Sep. 17, 2002).
Claims 2-5, 15-18, and 20 are rejected under 35 U.S.C. § 102(b) as
anticipated by, or in the alternative, under 35 U.S.C. § 103(a) as being
unpatentable over Curro.
Claims 1-9, 11-18, and 20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Curro and Coles (EP 0650714 A1; pub. Jan. 11, 1993).
Claims 10 and 19 are rejected under 35 U.S.C. § 103(a) as unpatent-
able over Curro, Coles, and Buell ‘874 (US 5,685,874; iss. Nov. 11, 1997).
Appeal 2010-006809
Application 11/118,603

3
ANALYSIS
Claims 1, 6-9, and 11-14 as anticipated by Curro
The Examiner found that Curro discloses an absorbent article with a
waist elastic member (at least region 409) located along the waist region and
comprising an elastic film 101 defining apertures 71 sufficient to allow fluid
transmission therethrough as called for in claim 1. Ans. 4-5. The Examiner
also found that Curro discloses that the waist elastic member has a length in
a longitudinal direction that is at least 25% of the length of the chassis, i.e.,
25% of the length between the front waist edge 401 and the back waist edge
401 of the absorbent article. Ans. 5 (citing Curro, figs. 13, 24, 25; col. 13, ll.
60-62; col. 14, ll. 9-13; Buell ‘092,1 col. 12, ll. 23-50). The Examiner also
noted that claim 1 does not require the length to be apertured from one end
edge to the other end edge. Ans. 5. The Examiner further found that Curro
discloses a waist elastic member 409 with a first edge located at one of the
waist edges and a second edge that is longitudinally opposite the first edge.
Ans. 6 (citing Curro, col. 16, ll. 23-26; col. 17, ll. 19-20; fig. 24 and Buell
‘092, col. 12, ll. 23-50; fig. 1).
We agree with Appellants that the Examiner has not shown that Curro
(or Buell ‘092) discloses a waist elastic member that is at least 25% of the
length of the chassis wherein a plurality of apertures are located along the
length of the waist elastic member including proximal to the second end as
called for in claim 1. App. Br. 7-8. Curro discloses an elastic waistband 409
disposed adjacent either or both end edges 401 of a diaper 400. Col. 16, ll.
19-26; fig. 24. The waistband 409 comprises an elastomeric web 80 with

1 Buell ‘092 (US 5,151,092; iss. Sep. 29, 1992) is incorporated by reference
in Curro. See Curro, col. 14, ll. 9-13; Ans. 4.
Appeal 2010-006809
Application 11/118,603

4
apertures 71 located along the length of the waistband for breathability. Col.
17, ll. 18-30 and ll. 37-45. However, the Examiner has not established by a
preponderance of evidence that the waistband 409 has a length that is at least
25% of the length of the chassis. App. Br. 9-10. As shown in Figure 24, the
waistband 409 extends in a longitudinal direction for only part of the length
of the chassis. Cf. fig. 13. The Examiner has not identified any disclosure
of dimensions or lengths of the waistband 409 relative to the length of the
chassis in Curro. See Ans. 4-6; see also Hockerson-Halberstadt, Inc. v. Avia
Gp. Int’l, Inc., 222 F.3d 951, 956 (Fed. Cir. 2000) (patent drawings do not
define precise proportions of elements and may not be relied on to show
particular sizes if the specification is completely silent on the issue).
The Examiner also found that Curro explicitly teaches an elastomeric
film 101 that is located not only in the waist region 409 but also extends the
entire length of the chassis as shown in Figure 13 and is positioned between
the outer cover 402 and bodyside liner (upper layer of bodyside web 404).
Ans. 5-6. The Examiner found that this elastomeric film 101 and elastic
waistband 409 extend longitudinally for the entire length of the chassis and
include a plurality of apertures along the length of the waistband 409. Ans.
5-6; 18-19. The Examiner interpreted claim 1 to not require the elastic film
101 to be coextensive with the elastic waistband 409 or apertures to be
located along the entire length of the elastic film 101. Ans. 3, 5.
We agree with Appellants that Curro does not disclose a waist elastic
member having a length that is at least 25% of the length of the chassis and a
plurality of apertures located along the length of the waist elastic member
including proximal to the second edge as called for in claim 1. App. Br. 9-
11. The Examiner’s finding that Figure 24 of Curro discloses apertures 71
Appeal 2010-006809
Application 11/118,603

5
that are proximal to the second edge of the elastic waistband 409 adjacent
the tip of the arrow from 20 (Ans. 6) does not explain how the waistband
409 extends at least 25% of the length of the chassis. To the extent the
Examiner relies on elastic film 101 to extend from the waistband 409 to the
other edge 401 of the diaper so the elastic film 101 and waist elastic member
409 extend the entire length of the chassis, the Examiner has not established
by a preponderance of evidence that the elastic film 101 includes apertures
proximal to the second edge (the other edge 401) as called for in claim 1. To
the extent that the Examiner relies on the elastic film 101 to extend from an
elastic waistband 409 at one edge 401 of the diaper 400 to another elastic
waistband 409 at the other edge 401 of the diaper 400, the Examiner has not
established that the elastic film 101 between the two elastic waistbands 409
has any apertures along its length. Ans. 5, 18-19. The Examiner’s finding
that the elastic film 101 is part of the claimed waist elastic member even
though it does not have any apertures located along its length is not
consistent with claim 1 interpreted in light of Appellants’ Specification,
which discloses that the waist elastic member 54, 56 has apertures 150 along
its length. See Spec. 14, l. 25 to 15, l. 24; figs. 5-8. Therefore, the Examiner
has not established that Curro discloses a waist elastic member with a length
that is at least 25% of the length of the chassis wherein a plurality of
apertures are located along the length of the waist elastic member including
proximal to the second edge as called for in claim 1.
We also agree with Appellants that the Examiner has not adequately
explained where Buell ‘092 discloses that a length of waist elastic member
34 in the longitudinal direction is at least 25% of the length of the chassis.
App. Br. 8. Figure 1 of Buell ‘092 discloses a waist elastic member 34 that
Appeal 2010-006809
Application 11/118,603

6
extends longitudinally from at least one waist end edge 64 of the diaper 20
to a waist edge 83 of the absorbent core 28. App. Br. 7-8 (citing col. 12, ll.
24-29 and fig. 1); Ans. 5 (citing col. 12, ll. 23-50), 6 (citing same and fig. 1).
The Examiner has not explained where Buell teaches dimensions or lengths
of the elastic waist feature 34 relative to the length of the chassis of the
diaper 20 to support a finding that the elastic waist feature 34 is at least 25%
of the length of the chassis. See Ans. 4-6. As such, we cannot sustain the
rejection of claims 1 and its dependent claims 6-9 and 11-14.
Claims 2-5, 15-18, and 20 as anticipated by or unpatentable over Curro
Independent claim 15 recites an absorbent article with a waist elastic
member having a length in the longitudinal direction that is at least 25% of
the length of the chassis, the waist elastic member comprising elastic film
defining apertures wherein a plurality of apertures are located along the
length of the waist elastic member including proximal to the second edge.
The Examiner relies on the findings for claims 1, 6-9, and 11 to reject claim
15 based on Curro. Ans. 9, 20-21. We agree with Appellants that Curro
does not disclose an absorbent article with these features for the reasons
discussed supra for claim 1. App. Br. 19. Accordingly, we cannot sustain
the rejection of claim 15 or its dependent claims 16-18 and 20, or claims 2-5,
which depend from claim 1. See App. Br. 18.
Claims 1-9, 11-18, and 20 as unpatentable over Curro and Coles
The Examiner also relied on the findings for the rejection of claim 1
to reject independent claims 1 and 15 as unpatentable over Curro and Coles.
Ans. 12, 16. The Examiner found that the portions of Curro that were cited
in the rejection of claim 1 teach the desire for porosity/breathability as well
as the elasticity/comfortable fit of various garment/diaper parts and the use
Appeal 2010-006809
Application 11/118,603

7
of elastic film 101 to accomplish this. Ans. 12. The Examiner further found
that Coles teaches the use of garment/diaper parts with elasticized features,
webs, and body hugging portions that include an elastic film with liquid
pervious topsheets and parts. The Examiner determined that it would have
been obvious to employ an elastomeric web, including a porous elastic film
101 of Curro, as a topsheet or attached thereto, with a longitudinal length
extending from waist edge to waist edge in view of the interchangeability of
the various combinations of elasticized features, webs, and desired body
hugging portions of garments/diapers as taught in Coles. Ans. 12-13. The
Examiner further found that this combination necessarily and inevitably
teaches that the waist elastic member/film 101 is located along the waist
region and is positioned between the cover 402 and the bodyside liner with a
plurality of apertures located along its length and proximal to the second
edge as shown in Figure 24 of Curro and as called for in claims 1 and 15.
Ans. 12-13, 16.
Appellants argue that Coles only mentions apertures at column 15,
line 22 where “a suitable topsheet may be manufactured from a wide range
of materials, such as porous foams; reticulated foams; apertured plastic
films; or woven or nonwoven webs . . . .” App. Br. 22. Appellants argue
that this disclosure relates to a topsheet, not to an elastic component. App.
Br. 22. Appellants further argue that elastic waist feature 34 in Coles is
separate from the bodyside liner and is not positioned between the bodyside
liner and the outer cover as called for in claims 1 and 15. App. Br. 22-23.
Appellants also assert that Coles does not disclose the length of the elastic
waist feature 34 relative to the length of the chassis. App. Br. 23. We agree.

App
App

Curr
has a
101
wais
elast
and
of th
garm
cont
acco
alon
apert
of in
2. T
mem
Figu
eal 2010-0
lication 11
As discu
o, the Exa
ny apertur
extends lo
t edge to th
ic film 10
15. The E
e desirabil
ent/diaper
acting web
mplish all
g the lengt
ures 71 ar
terconnect
he elastic
bers 91-95
res 2-4. C
Represen
06809
/118,603
ssed supra
miner also
es located
ngitudinal
e other w
1 includes
xaminer al
ity of poro
parts such
or any ela
of this (An
h of the el
e formed i
ing memb
film 101 is
that, in tu
urro, col.
tative Figu
for the re
has not sh
along its
ly for the e
aist edge,
apertures a
so has not
sity/breath
as waist
sticized fe
s. 12) nec
astic film
n an elasto
ers 91, 92
part of a
rn, form t
9, ll. 31-36
res 2-4 an
8
jection of
own that t
length. Th
ntire lengt
the Exami
long its le
adequatel
ability an
band porti
atures and
essarily re
101. Ans.
meric web
, 93, 94, 95
laminate th
he apertur
and 45-54
d 24 of Cu

claim 1 as
he elastic
erefore, ev
h of the ch
ner has no
ngth as ca
y explaine
d elasticity
ons and le
the use o
sults in ap
4, 5, 6. C
80 by a c
. Curro, c
at forms t
es 71 of th
.
rro are rep
anticipate
film 101 o
en if the e
assis, from
t establish
lled for in
d how a d
/comforta
g cuffs wit
f elastic fi
ertures be
urro disclo
ontinuous
ol. 9, ll. 1
he interco
e web, as
roduced b
d by
f Curro
lastic film
one
ed that the
claims 1
isclosure
ble fit in
h a body
lm 101 to
ing located
ses that
network
0-18; fig.
nnecting
shown in
elow:

App
App

Fig
poly
mul
skin
are l
only
least
rejec
Clai
on C
whic
mls
eal 2010-0
lication 11
ures 2 and
mer film o
tilayer film
layers 103
The Exa
ocated alo
along the
25% of th
tion of cla
ms 10 and
Because
urro and C
h depend,
The reje

06809
/118,603
3 show e
ne of whic
of an ela
; Fig. 24 i
miner has
ng any par
elastic wa
e length o
ims 1-9, 1
19 as unp
we do not
oles, we a
respective
ction of cl

lastomeric
h is elasti
stomeric w
s a dispos
not identif
t of the ela
istband 40
f the chass
1-18, and
atentable o
sustain th
lso do not
ly, from c
DE
aims 1-20
RE
9
webs mad
c film 101
eb with an
able article
ied any di
stic film 1
9, which i
is. Accord
20 based o
ver Curro
e rejection
sustain th
laims 1 an
CISION
is REVER
VERSED
e with tw
; Figure 4
elastic la
with an e
sclosure o
01. Apert
s not disclo
ingly, we
n Curro an
, Coles, a
on of clai
e rejection
d 15. See
SED.
o-layer lam
is a cross-
yer 101 be
lastic wais
f any apert
ures 71 ar
sed as ex
cannot su
d Coles.
nd Buell
ms 1 and
of claims
App. Br. 2

inates of
section of
tween two
tband 409
ures that
e formed
tending at
stain the
15 based
10 and 19
4.
a

.
,