Ex Parte Lam et al

Board of Patent Appeals and Interferences

Mar 29, 2012

11155981 (B.P.A.I. Mar. 29, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/155,981 06/17/2005 Joseph Hung Lam 10046Q 5858
27752 7590 03/30/2012
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
KIDWELL, MICHELE M
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
03/30/2012 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 JOSEPH HUNG LAM, MICHAEL IRWIN LAWSON,
EGON LOEFFLER, DOUGLAS GRAHAM,
and KANEETA KIMBLE
__________

Appeal 2010-006816
Application 11/155,981
Technology Center 3700
__________

Before TONI R. SCHEINER, DONALD E. ADAMS, and DEMETRA J. MILLS,
Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-20, directed to a disposable absorbent article. The claims have
been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b).

Appeal 2010-006816
Application 11/155,981

2
STATEMENT OF THE CASE
Claims 1-20 are pending and on appeal. Claim 1 is representative of
the subject matter on appeal (emphases added):
1. A disposable absorbent article comprising
a) a chassis having a front waist region, a rear waist region, a crotch
region between the front waist region and the rear waist region, and a pair of
longitudinal edges, said chassis comprising:
i) a liquid permeable topsheet,
ii) a backsheet, and
iii) an absorbent core disposed between the topsheet and
backsheet; and
b) an ear having a perimeter, a distal edge, and a proximal edge; said
ear comprising
i) an elastomeric material and
ii) a first substrate joined to the elastomeric material
wherein the perimeter of the ear defines an ear area, and the first
substrate occupies an area equal to the ear area; further wherein the ear has
a first void region adjacent the proximal edge of the ear, wherein
elastomeric material, but not the first substrate, is absent from the first
void region,
wherein at least a portion of said ear extends laterally outward from
one of the longitudinal edges of the chassis in the front waist region or the
rear waist region, and
wherein the ear is joined to the chassis by at least one mechanical
bond that engages the elastomeric material.
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Heki et al. (US 5,906,008, May 25, 1999).
We reverse.
OBVIOUSNESS
Findings of Fact
1. Heki disloses a disposable diaper with “a pair of ear parts 6
projecting in opposite directions from the opposite side edges” of the diaper
(Heki, col. 8, ll. 39-41).
Appeal 2010-006816
Application 11/155,981

3
2. The ear parts 6 may be integral to the diaper or they may be
formed separately and joined to the diaper by a method like heat sealing or
adhesive bonding (Heki, col. 9, ll. 42-46).
2. Figure 3 of Heki, reproduced below, is a fragmentary sectional
view of an ear part 6:

Figure 3 of Heki is a fragmentary sectional view of an ear part 6,
formed by laminating a porous film 12 between a layer of nonwoven fabric
11, and a layer of thermoplastic film 13, with adhesive layers 14 and 15
(Heki, col. 9, ll. 54-61). “the porous film 12 . . . provides the ear parts 6
with firmness, which facilitates handling of the ear parts 6 when putting the
disposable diaper 1 on the wearer” (id. at col. 9, l. 55 - col. 10, l. 2).
Discussion
The Examiner relies on Figure 3 and column 9, line 27 through
column 10, line 2 of Heki, as evidence that Heki discloses an absorbent
article which includes, among other things, “an ear (6) comprising an
elastomeric film [12] placed between a first foam substrate . . . and [a]
second substrate” (Ans. 3). The Examiner concedes that “layer 12 . . . is not
explicitly recited as elastic” (id. at 4), but finds that layer 12 would “impart a
certain degree of elasticity as the layer is perforated . . . thereby providing
surrounding sections with a certain amount of flexibility” (id.).
Appeal 2010-006816
Application 11/155,981

4
In addition, the Examiner finds that “the film (12) includes
pores/openings in which the material is not present” (id. at 5), and these
perforations “are considered as the claimed void regions as they are
completely absent of the layer’s material” (id.).
Appellants contend that the claims “require an ear comprising an
elastomeric material and a first substrate joined to the elastomeric material,
. . . wherein the ear has a first void region adjacent the proximal edge of the
ear, where the elastomeric material, but not the first substrate, is absent”
(App. Br. 5). Appellants contend that “Figure 3 [of Heki] depicts a
continuous porous film 12” (id. at 6), and therefore, Heki “does not disclose
an ear having a first void region as claimed” (id.).
We agree with Appellants. Essentially, the claims require that the ear
have a void region adjacent the proximal the portion of the ear (i.e., the
portion adjacent the chassis), where the first substrate is present and the
elastomeric material is absent (i.e., the void area). Accepting, arguendo, that
Heki’s porous film 12 comprises an elastomeric material, the Examiner
cannot have it both ways. That is, the Examiner has not shown or alleged
that there is any area of the ear where porous film 12 is absent, and the area
where porous film 12 is present cannot simultaneously define a region where
the elastomeric material is present and a void region where it is absent. Nor
has the Examiner otherwise explained what reason one of ordinary skill in
the art would have had to modify Heki in the manner required by all the
claims on appeal.
Appeal 2010-006816
Application 11/155,981

5
CONCLUSION
The rejection of claims 1-20 under 35 U.S.C. § 103(a) as unpatentable
over Heki et al. is reversed.
REVERSED

dm