Ex Parte Kline et alDownload PDFPatent Trial and Appeal BoardJul 2, 201411240727 (P.T.A.B. Jul. 2, 2014) Copy Citation 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). Appeal 2012-004204 Application 11/240,727 3 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). App App Figu mad mate (Id. a an ab faste locat that [Sko varia “the eal 2012-0 lication 11 FF2. Fig re 2 shows FF3. Sk e from an rial” (id. a FF4. Sk [w]hen t rear edg cause th raised p lock the t 5:22-29 FF5. Th sorbent ar ning devic ion[s], the functions a FF6. Th g] disclose ble stiffne FF7. Th predeterm 04204 /240,727 ure 2 of S “a perspe og disclos elastic or r t 5:14-16) og disclos he rear ed e of the ap e wall to s ortion 10 w fastener el .) e Examine ticle, whe e configur fastening s claimed e Examine the use o ss membe e Examine ined stimu kog is sho ctive view es that the esilient ma . es that ge of the r erture 9 . pring back ill projec ements 5 r finds tha rein the fa ed to conn device inc . . .” in the r finds tha f plastic m r” (id.). r finds tha li can incl 4 wn below of the fas “fastener terial, for aised port . . the res to its earl t out throu and 6 toge t Skog dis stening sy ect a first luding a v instant cl t “[b]oth t aterials as t the insta ude a num : tener mean elements 5 instance a ion 10 . . . iliency of ier positio gh the ap ther. closes a fa stem inclu . . . [and] ariable sti aims (Ans he instant being suit nt Specific ber of thin s” (id. at , 6 are pre thermopla has passe the wall 8 n . . . [and erture 9 . stening sy des a “tab second art ffness mem . 5). applicatio able to co ation disc gs includi 4:7-9). ferably stic d the will ] the . . to stem for and slot icle ber (5) n and . . . mpose the loses that ng an Appeal 2012-004204 Application 11/240,727 5 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 6 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 Appeal 2012-004204 Application 11/240,727 7 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). Appeal 2012-004204 Application 11/240,727 8 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 9 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: Appeal 2012-004204 Application 11/240,727 10 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 11 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 Appeal 2012-004204 Application 11/240,727 12 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 Appeal 2012-004204 Application 11/240,727 13 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 tj Copy with citationCopy as parenthetical citation