Ex Parte Misek et al

Board of Patent Appeals and Interferences

Jun 4, 2009

10392116 (B.P.A.I. Jun. 4, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte JENNIFER L. MISEK, DANIELLE G. FINGER, ALICE Y.
ROMANS-HESS, MARY A. BERCEAU, JAMIE L. GLOEDE, CANDACE
D. KRAUTKRAMER, JASON M. ENGLISH, JENNIFER E. POZNIAK,
STUART J. BURGAN, PETER S. GEBHARDT, PATSY A.
KRAUTKRAMER, WENDY L. HAMILTON, and AMANDA J.
CARLSON
__________

Appeal 2009-000437
Application 10/392,166
Technology Center 3700
__________

Decided:1 June 5, 2009
__________

Before DEMETRA J. MILLS, ERIC GRIMES, and FRANCISCO C.
PRATS, Administrative Patent Judges.

MILLS, Administrative Patent Judge.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2009-000437
Application 10/392,116

DECISION ON APPEAL

This is an appeal under 35 U.S.C. § 134. The Examiner has rejected
the claims for obviousness. We have jurisdiction under 35 U.S.C. § 6(b).

STATEMENT OF CASE
The following claim is representative.

1. An absorbent feminine care article having a longitudinal direction, a
lateral direction, first and second longitudinally opposed end portions, and
an intermediate portion located between said end portions, said article
comprising:
a liquid-permeable cover,
a baffle; and
an absorbent body sandwiched between the cover and baffle, said absorbent
body including an intake layer and a shaping layer;
wherein said shaping layer is positioned between said cover and said baffle:
said intake layer is positioned between said cover and said shaping layer;
said shaping layer includes therein a stabilized, thermally-bonded, airlaid,
fibrous material having bicomponent binder fiber,
at least about 5 wt% superabsorbent material, and
not more than about 75 wt% superabsorbent material;
said intake layer includes a stabilized, thermally-bonded, airlaid, fibrous
material having bicomponent binder fiber therein;
said intake layer has a density which is less than a density of said shaping
layer; and
said intake layer has an area extent which is less than an area extent of said
shaping layer.

Cited References
Weisman et al. US 4,673,402 Jun. 16, 1987
Richards et al. US 5,607,414 Mar. 4, 1997

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Appeal 2009-000437
Application 10/392,116

Grounds of Rejection
1. Claims 1, 4-8, 11-14, and 19-22 are rejected under 35 U.S.C.
§103(a) as being obvious over Richards in view of Weisman.
2. Claim 21 is rejected under 35 U.S.C. § 112, second paragraph, as
being indefinite for failing to particularly point out and distinctly claim the
subject matter which applicants regard as the invention.

Rejection 1
ISSUE
The Examiner argues that “Richards discloses the intake layer has an
area extent, which is less than an area extent of said shaping layer as broadly
claimed …” (Ans. 6).
Appellants contend that
The structures taught by Richards also do not provide a
configuration having an intake layer with an area size that is
smaller than that of the shaping layer, as called for by the
claimed invention. Additionally, Richards does not teach the
relative sizes of the intake layer and shaping layer that are
called for by particular claims of Appellants.

(App. Br. 9.)

The issue is: Does the combination of references disclose an intake
layer which has an area extent which is less than an area extent of the
shaping layer, as claimed?

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Appeal 2009-000437
Application 10/392,116

FINDINGS OF FACT
1. The Specification, Figure 1B is reproduced below.

Figure 1B shows a transverse cross-section of the absorbent article as
claimed. The Figure shows cover 26, baffle 28, absorbent structure 30,
bodyside intake layer 32, retention/shaping layer 36, and the intake layer 32
which has an area extent which is less than an area extent of said shaping
layer 36, as claimed.

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Appeal 2009-000437
Application 10/392,116

2. Figure 3 of Richards is reproduced below.

Figure 3 shows topsheet 12, absorbent structure 16, backsheet 18, primary
distribution layer 24, fluid storage layer 26, and a fibrous dusting layer 28.
All layers reasonably appear to have the same width, and area extent.
3. According to the Examiner, Richards discloses an absorbent feminine
care article having a longitudinal direction, a lateral direction, first and
second longitudinally opposed end portions, and an intermediate portion
located between the end portions, the article comprising: a liquid-permeable
cover 12; a baffle 18; an absorbent body 16 sandwiched between the cover
and baffle, the absorbent body including an intake layer 24 and a shaping
layer 30. Richards discloses the shaping layer 26 is positioned between the
cover and said baffle (Figure 4). (Ans. 5.)
4. “Richards discloses the intake layer 24 is positioned between the cover
12 and the shaping layer 30.” Id.
5. “Richards discloses the shaping layer includes a fibrous material having

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Application 10/392,116

bicomponent binder fiber therein (col. 11, lines 49-52).” Id.
6. “Richards discloses the intake layer includes a stabilized airlaid, fibrous
material having bicomponent binder fiber therein (col. 11, lines 49-52; col.
16, lines 43-67).” Id.
7. The Examiner finds that the “limitation of the thermally bonded shaping
layer and intake layer is directed to a process of making the article.” Id.
8. “Richards discloses the intake layer has a density, which is less than a
density of said shaping layer (col. 17 and 18, Tables 1 and 2).” Id. at 5-6.
9. The Examiner finds that “Richards discloses the intake layer has an area
extent, which is less than an area extent of said shaping layer as broadly as
claimed (see col. 17 and 18, Tables 1 and 2 where the intake layer has a
lower caliper than the shaping layer).” (Ans. 6.)
10. “Richards does not disclose the shaping layer comprises superabsorbent
material.” Id.
11. “Weisman . . . discloses an acquisition/distribution layer that has
superabsorbent material for the benefit of maintaining density of the upper
layer within the optimum range to promote fluid distribution (col. 5, lines
63-68).” Id.
12. The Examiner finds that “It would have been obvious to one having
ordinary skill in the art at the time the invention was made to modify the
shaping layer of Richards with superabsorbent material based on the benefits
of an acquisition layer having superabsorbent material as taught in
Weisman.” Id.

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Appeal 2009-000437
Application 10/392,116

PRINCIPLES OF LAW
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness. Only if that
burden is met, does the burden of coming forward with evidence or
argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532 (Fed.
Cir. 1993) (citations omitted). In order to determine whether a prima facie
case of obviousness has been established, we considered the factors set forth
in Graham v. John Deere Co., 383 U.S. 1, 17 (1966); (1) the scope and
content of the prior art; (2) the differences between the prior art and the
claims at issue; (3) the level of ordinary skill in the relevant art; and (4)
objective evidence of nonobviousness, if present.
“[O]bviousness requires a suggestion of all limitations in a claim.”
CFMT, Inc. v. Yieldup Intern. Corp., 349 F.3d 1333, 1342 (Fed. Cir. 2003)
(citing In re Royka, 490 F.2d 981, 985 (CCPA 1974)).

ANALYSIS
Appellants contend that
The structures taught by Richards . . . do not provide a
configuration having an intake layer with an area size that is
smaller than that of the shaping layer, as called for by the
claimed invention. Additionally, Richards does not teach the
relative sizes of the intake layer and shaping layer that are
called for by particular claims of Appellants.

(App. Br. 9.)

We agree with Appellants and do not find that the Examiner has
provided evidence in the prior art of an intake layer which has an area extent
which is less than an area extent of said shaping layer, as claimed. The

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Appeal 2009-000437
Application 10/392,116

Examiner argues that Appellants do not recite the length and width
dimensions of the intake and shaping layers in the claims. (Ans. 11.) While
Appellants do not recite length and width dimensions of the intake and
shaping layers in the claims, Appellants do claim the relative size areas of
the intake and shaping layers. The Examiner argues that the intake layer of
Richards has a lower caliper and density than the shaping layer and as best
we understand the Examiner’s argument, it is argued that the lower density
provides a smaller area extent of the intake layer as compared to the shaping
layer.
We do not find that the Examiner has correlated a caliper or density
with an area extent (distance over which an object extends), as claimed.
In view of the above, the obviousness rejection of the claims is
reversed.

Claim 21
2. Claim 21 is rejected under 35 U.S.C. 112, second paragraph, as being
indefinite for failing to particularly point out and distinctly claim the subject
matter which applicant regards as the invention. (Answer 4.) Claim 21 is
dependent on cancelled claim 10. For this reason, the scope of claim 21
cannot be determined.
Appellants contend that the Examiner should have entered the
Amendment After Final Rejection dated May 3, 2006, which obviated this
rejection. However, we have no authority to review that decision. See In re
Mindick, 371 F.2d 892, 894 (CCPA 1967) (refusal of examiner to enter an
amendment after final rejection of claims is a matter of discretion; if there is
an abuse of discretion, the matter may be remedied by petition to the

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Appeal 2009-000437
Application 10/392,116

Commissioner of Patents; Board of Appeals does not consider the issue
whether examiner's refusal to enter proposed amendment after final rejection
constituted an abuse of discretion); In re Pavlecka, 319 F.2d 180, 188
(CCPA 1963) (the non-entry of amendments is a procedural matter outside
board's jurisdiction). Therefore, we summarily affirm the Examiner's
indefiniteness rejection.

SUMMARY
The obviousness rejection is reversed. The indefiniteness rejection is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

cdc

KIMBERLY-CLARK WORLDWIDE, INC.
Catherine E. Wolf
401 NORTH LAKE STREET
NEENAH WI 54956

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