Ex Parte Kline et al

Patent Trial and Appeal Board

Jul 2, 2014

11240727 (P.T.A.B. Jul. 2, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte MARK JAMES KLINE, JEROMY THOMAS RAYCHECK,
ARMAN ASHRAF, and URMISH POPATAL DALAL
__________

Appeal 2012-004204
Application 11/240,727
Technology Center 3700
__________

Before ERIC B. GRIMES, LORA M. GREEN, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

PER CURIAM.

DECISION ON APPEAL
This is a decision on appeal1 under 35 U.S.C. § 134 from the
Examiner’s rejection of claims 1-10, 12-14, 18, 19, and 21-23.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 The Real Party in Interest is The Procter & Gamble Company (App. Br. 1).
2 The Examiner indicated that claims 11, 15-17, and 20 also stand rejected
(Ans. 4, 6), but claims 11, 15-17, and 20 have been canceled (App. Br. 2).
Appeal 2012-004204
Application 11/240,727

2
STATEMENT OF THE CASE
The Specification discloses “an improved fastening system suitable
for use with disposable absorbent articles” (Spec. 2:29-30). The
Specification discloses that the “fastening device includes a variable
stiffness member . . . [that] undergoes a stiffness reduction in response to a
predetermined stimulus to achieve a reduced stiffness that is less than the
original stiffness” (id. at 3:12-15). Claim 1 is representative of the claims on
appeal and reads as follows:
1. An absorbent article having a front waist region, a back waist
region opposed to the front waist region and a crotch region
located between the front waist region and the back waist
region, a pair of longitudinal edges and a pair of end edges, the
absorbent article comprising:
a top sheet;
a backsheet attached to the top sheet; and
a fastening system including at least one tab and slot
fastening device configured to connect a first article location to a
second article location, the fastening device including a variable
stiffness member having an original stiffness before
experiencing a predetermined stimulus and a permanently
reduced stiffness after experiencing the predetermined stimulus,
wherein the reduced stiffness is less than the original stiffness,
and wherein the predetermined stimulus is a force applied by
contact between the article and a body of a wearer while the
article is being worn.

The claims stand rejected as follows:
I. Claims 1-3, 5-8, 18, 19, and 23 under 35 U.S.C. § 102(b) in
view of Skog3 (Ans. 4-6);

3 Skog (GB 2 303 046, Published Feb. 2, 1997).
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Application 11/240,727

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II. Claims 1-8, 18, 19, and 23 under 35 U.S.C. § 102(b) in view of
Battrell4 (Ans. 6-7);
III. Claims 9, 10, 12-14, 21 and 22 under 35 U.S.C. § 103(a) in
view of Skog (Ans. 8); and
IV. Claims 9, 10, 12-14, 21 and 22 under 35 U.S.C. § 103(a) in
view of Battrell (Ans. 8-9).
I.
Issue
The Examiner has rejected claims 1-3, 5-8, 18, 19, and 23 under 35
U.S.C. § 102(b) as anticipated by Skog (Rejection I) (Ans. 4-6). The
Examiner has also rejected claims 9, 10, 12-14, 21 and 22 under 35 U.S.C.
§ 103(a) in view of Skog (Rejection III) (Ans. 8). We focus our initial
analysis on independent claim 1.
The issue presented is: Has the Examiner established by a
preponderance of the evidence that Skog discloses an absorbent article
comprising a fastening device that includes “a variable stiffness member
having an original stiffness before experiencing a predetermined stimulus
and a permanently reduced stiffness after experiencing the predetermined
stimulus” as required by claim 1?
Findings of Fact
FF1. Skog discloses “an absorbent article . . . comprising fastener
means for fastening together opposing front and rear side-parts thereof so as
to form an encircling waistband” (Skog 1:4-8).

4 Battrell ( US 5,221,276, Published Jun. 22, 1993).
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Appeal 2012-004204
Application 11/240,727

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applied force, a thermal fluctuation, a change in humidity and/or a liquid
presence . . . [and discloses] an example of plastic deformation reducing the
overall stiffness” (id.).
FF8. The Examiner finds that Skog’s plastic variable stiffness
member will have an original stiffness and will also have “a reduced
stiffness . . . after experiencing a predetermined stimulus, such as thermal
fluctuation and/or applied force . . .if the predetermined stimulus is sufficient
enough to reduce the original stiffness . . .” (id.).
Analysis
Appellants argue that Skog “does not disclose a fastener that
experiences ‘a permanently reduced stiffness’ after experiencing a force that
is applied ‘by contact between the article and a body of a wearer while the
article is being worn,’” as required by claim 1 (App. Br. 8 (emphasis
deleted)). According to Appellants, “[s]tiffness is a material property; a
resistance to deformation” (id. at 9). Thus, Appellants contend, a “reduced
stiffness is a change in that material property; a lessened resistance to
deformation” (id.). Appellants argue that Skog “does not describe a change
in the material properties of the fastener . . . [and thus] does not disclose a
‘reduced stiffness’” (id.)
The Examiner responds that Skog’s fastener element comprises a
plastic “material that when subjected to a ‘predetermined stimuli’ such as
thermal fluctuation will result in a plastic deformation . . . [and] a reduction
in overall stiffness” (Ans. 10). The Examiner further responds that Skog’s
plastic fastener element will have a reduced stiffness “after experiencing a
predetermined stimulus, such as applied force . . . if the predetermined
Appeal 2012-004204
Application 11/240,727

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stimulus is sufficient enough to reduce the original stiffness” (id.). The
Examiner further responds that Skog’s fastener element comprises “inner
outer walls (having an original stiffness) [that] diverge, or open, (reduced
stiffness) in response to the insertion . . . of the [other] fastener element” (id.
at 11). The Examiner reasons that the “reduced stiffness is considered
permanent because it will remain as such as long as the article is fastened,
which may be indefinitely” (id.).
We agree with Appellants that the Examiner has not adequately
shown that Skog discloses a fastening device that includes “a variable
stiffness member having an original stiffness before experiencing a
predetermined stimulus and a permanently reduced stiffness after
experiencing the predetermined stimulus,” as required by claim 1. The
Examiner cites Skog’s fastener element 5 as being made out of plastic and as
experiencing a permanent reduction in stiffness after being exposed to force.
Skog, however, discloses that the wall of fastener element 5 will be flexed
outwardly to allow the other fastener element to pass, but that the resiliency
of the wall will allow the wall to spring back to its original position (FF 4).
Because Skog does not disclose a material change in the fastener element 5,
but in fact discloses that the resilient fastener element returns to its original
position, we conclude that the Examiner has not adequately shown how
Skog discloses a fastener element that undergoes a change from an original
stiffness to a permanently reduced stiffness, as required by claim 1. To the
extent that the Examiner is arguing that the material will inherently
experience a permanent reduction in stiffness, the Examiner provides no
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Application 11/240,727

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evidence supporting that this is a necessary result and Skog’s resiliency (FF
4) provides evidence otherwise.
Thus, we reverse the rejection of independent claim 1 and dependent
claims 2, 3, 5-8, and 18 as being anticipated by Skog.
Independent claim 19 is directed to a “tab and slot fastening device for
fastening a first member to a second member, the fastening device
comprising . . . a variable stiffness member having an original stiffness
before experiencing a predetermined stimulus and a permanently reduced
stiffness after experiencing the predetermined stimulus.”5
Because we have concluded that the Examiner has not adequately
shown how Skog discloses a fastener element that undergoes a change from
an original stiffness to a permanently reduced stiffness, as discussed above,
we reverse the rejection of independent claim 19 as being anticipated by
Skog.
Independent claim 23 is directed to a method for fastening an
absorbent article onto the body of a wearer such that the article comprises a
fastening device that includes “a variable stiffness member having an
original stiffness before experiencing a predetermined stimulus and a
permanently reduced stiffness after experiencing the predetermined
stimulus.” Claim 23 requires the method steps of
(A) connecting the tab and slot members; (B) after the
connecting, applying the force by contact between the article
and a body of a wearer while the article is being worn; and (C)

5 The full text of claim 19 can be found in the Claims Appendix to the
Appeal Brief (App. Br. 18).
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Application 11/240,727

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after the applying, reducing a stiffness of the fastening device
from the original stiffness to the reduced stiffness.6
As discussed above, the Examiner has not adequately shown how
Skog discloses a fastener element that undergoes a change from an original
stiffness to a permanently reduced stiffness, and thus the Examiner has not
shown how Skog discloses the step of reducing that stiffness of the fastening
device. Thus, we reverse the rejection of independent claim 23 as being
anticipated by Skog.
The Examiner has also rejected dependent claims 9, 10, 12-14, 21,
and 22 under 35 U.S.C. § 103(a) as being obvious over Skog (Rejection III)
(Ans. 8). The Examiner concludes that Skog would have made obvious the
limitations of the dependent claims. As discussed above, however, we have
determined that the Examiner has not adequately explained how Skog
anticipates independent claims 1 and 19, and thus we also conclude that the
Examiner has not adequately explained how Skog would have made obvious
dependent claims 9, 10, 12-14, 21, and 22. Thus, we reverse this rejection as
well.
Conclusion of Law
The preponderance of the evidence does not support the Examiner’s
finding that Skog discloses an absorbent article comprising a fastening
device that includes “a variable stiffness member having an original stiffness
before experiencing a predetermined stimulus and a permanently reduced

6 The full text of claim 23 can be found in the Claims Appendix to the
Appeal Brief (App. Br. 18-19).
Appeal 2012-004204
Application 11/240,727

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stiffness after experiencing the predetermined stimulus” as required by claim
1.
II.
Issue
The Examiner has rejected claims 1-8, 18, 19, and 23 under 35 U.S.C.
§ 102(b) as anticipated by Battrell (Rejection II) (Ans. 6-7). The Examiner
has also rejected claims 9, 10, 12-14, 21, and 22 under 35 U.S.C. § 103(a) in
view of Battrell (Rejection IV) (Ans. 8-9).
The issue presented is: Has the Examiner established by a
preponderance of the evidence that Battrell discloses an absorbent article
comprising a tab and slot fastening device?
Additional Findings of Fact
FF9. Battrell discloses “a pressure-sensitive adhesive fastener [that]
has a textured fastening surface so as to have a relatively high shear
resistance and a desired peel resistance” (Battrell, col. 3, ll. 5-8).
FF10. Figure 5 of Battrell is shown below:

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Figure 5 shows “a partially cut-away perspective view of a diaper
embodying the fastening system and the pressure-sensitive adhesive
fastener” (id. at col. 3, ll. 61-63).
FF11. With reference to Figure 5, Battrell discloses that “the closure
member 84 preferably comprises a tape tab 86 and the pressure-sensitive
adhesive fastener 20 of the present invention (a first fastening element 88)
while the landing member 44 preferably has a textured contacting surface 46
engageable with the first fastening element 88” (id. at col. 16, ll. 32-37).
FF12. The Examiner finds that Battrell discloses an absorbent article
comprising “a fastening system (88) including at least one fastening device
configured to connect a first article location to a second article location . . .”
(Ans. 6).
FF13. The Specification discloses that tab and slot fastening systems
are known in the art and typically include
a tab member disposed at a first location on the diaper, and a
slot member disposed at a second location on the diaper . . .
[such that the] slot member defines a slot that receives the tab
member in order to connect the fastening system. Specifically,
the tab member is passed through the slot and is subsequently
pivoted such that a portion of the tab member engages an edge
of the slot to prevent the tab member from passing back through
the slot member.

(Spec. 2:1-8.)
FF14. The Specification discloses that a “tab member” is defined “as
an attachment member, at least a portion of which is configured to be passed
through a mating slot member 44 . . . while a ‘slot member’ is broadly
Appeal 2012-004204
Application 11/240,727

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defined herein as an attachment member configured to receive at least a
portion of a tab member” (id. at 11:30-12:1).
Analysis
Appellants argue that Battrell does not disclose “a tab and slot
fastening device” (App. Br. 13 (emphasis removed)). Appellants argue that,
in Battrell, “there is no mention of a tab structure . . . [and] no mention of a
slot structure” (id.). Appellants argue that Battrell’s “micro-fasteners . . . are
fundamentally different from tab and slot fasteners . . .” (id.). Appellants
argue that “[m]icro-fasteners and tab and slot fasteners differ in function . . .
[because a] tab and slot fastener fastens by passing one element through the
other” (id. at 12). Appellants argue that a “micro-fastener fastens by
pressing together the faces of two surfaces that include the elements” (id.).
The Examiner responds that “[w]hile the fastener disclosed by Battrell
may be deemed as a microfastener, it is still considered as a tab and slot
fastener according to the plain and ordinary meaning of the terms” (id. at 11-
12). “A tab is defined as a projection. A slot is defined as an opening” (id.
at 11). The Examiner further responds that “the instant specification . . .
fails to provide an express definition for the term ‘tab’ and/or ‘slot’” (id. at
12).
We agree with Appellants that the Examiner has not adequately
shown that Battrell discloses an absorbent article comprising “a fastening
system including at least one tab and slot fastening device,” as required by
claim 1. The Examiner was in error in finding that the instant Specification
does not define the terms “tab” and “slot” because definitions for these terms
are found in the Specification (FF 14). Specifically, the Specification
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discloses that a “tab member” is an attachment member configured to be
passed through a mating slot member and a ‘slot member’ is an attachment
member configured to receive at least a portion of a tab member. Because
the Examiner has not adequately explained how Battrell’s adhesive
attachment members would meet the stated definitions for “tab” and “slot,”
we will reverse the rejection of independent claim 1 and dependent claims 2-
8 and 18 as anticipated by Battrell.
Independent claim 19 is directed to a “tab and slot fastening device for
fastening a first member to a second member.” Because we have found that
the Examiner has not shown how Battrell discloses a tab and slot fastening
device, as discussed above, we also reverse the rejection of claim 19 as
being anticipated by Battrell.
Independent claim 23 is directed to a method for “fastening an
absorbent article onto the body of a wearer, [wherein] the article . . . [has] a
tab and slot fastening device.” Claim 23 requires, among other steps, the
step of “connecting the tab and slot members.”
Because we have found that the Examiner has not shown how Battrell
discloses a tab and slot fastening device, as discussed above, we also reverse
the rejection of claim 23 as being anticipated by Battrell.
The Examiner has also rejected claims 9, 10, 12-14, 21, and 22 under
35 U.S.C. § 103(a) as being obvious over Battrell (Rejection IV) (Ans. 8).
The Examiner concludes that Battrell would have made obvious the
limitations of the dependent claims. As discussed above, however, we have
determined that the Examiner has not adequately explained how Battrell
anticipates independent claims 1 and 19, and thus we also conclude that the
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Examiner has not adequately explained how Battrell would have made
obvious dependent claims 9, 10, 12-14, 21, and 22. Thus, we also reverse
this rejection.
Conclusion of Law
The preponderance of the evidence does not support the Examiner’s
finding that Battrell discloses an absorbent article comprising a tab and slot
fastening device.
SUMMARY
We reverse all of the rejections on appeal.

REVERSED

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