Ex Parte Nelson et al

Patent Trial and Appeal Board

Mar 29, 2018

13832965 (P.T.A.B. Mar. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/832,965 03/15/2013
117928 7590 04/02/2018
Medline Industries, Inc.
c/o Laubscher, Spendlove & Laubscher, P.C.
1160 Spa Road, Suite 2B
Annapolis, MD 21403
FIRST NAMED INVENTOR
Christopher J. Nelson
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
26403.CIP 8732
EXAMINER
STEPHENS, JACQUELINE F
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
04/02/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
rspendlove@laubscherlaw.com
info@laubscherlaw.com
asimonini@laubscherlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER J. NELSON, WILLIAM ROVERO, and
DANIEL B. LOVE
Appeal2017-003168
Application 13/832,965
Technology Center 3700
Before LYNNE H. BROWNE, MICHELLE R. OSINSKI, and
THOMAS F. SMEGALAdministrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant 1 seeks our review under 35 U.S.C. § 134(a) of the
Examiner's rejections2 under 35 U.S.C. § 103(a) of claims 1, 3-9, 11, and 12
as unpatentable over Datta (US 6,315,765 Bl, issued Nov. 13, 2001); and of
claim 10 as unpatentable over Datta and Sneller (US 5,234,422, issued Aug.
10, 1993). We have jurisdiction under 35 U.S.C. § 6(b).
1 Appellant is Applicant, Medline Industries, Inc., which according to the
Appeal Brief, filed Dec. 1, 2015 ("Appeal Br."), is the real party in interest.
Appeal Br. 2.
2 Appeal is taken from the adverse decision of the Examiner, set forth in the
Final Office Action, mailed July 2, 2015 ("Final Act."), as modified in the
Answer mailed July 13, 2016 ("Ans."). With no remaining rejection of
claims 2 and 13-25, these claims appear to be allowed. See Id. at 7.
Appeal2017-003168
Application 13/832,965
We REVERSE.
CLAIMED SUBJECT MATTER3
Claim 1, the sole independent claim on appeal, is reproduced below
and illustrates the claimed subject matter, with disputed limitations
emphasized.
1. An absorbent article, comprising:
a chassis, the chassis including a length extending in a
longitudinal direction from the back to the front of a user and a
width extending in a lateral direction substantially perpendicular
to the length between first and second longitudinal edges, the
chassis comprising a first portion, a second portion and a crotch
portion extending between the first and second portion, a portion
of the chassis being configured to absorb fluids;
a securement portion operatively coupled to the first
portion of the chassis, the securement portion having a width
extending in a lateral direction from the first longitudinal edge of
the chassis first portion and a length extending longitudinally
along the first longitudinal edge, the securement portion
comprising:
a patient facing layer;
a outwardly facing layer; and
a lamination layer positioned between the patient
facing layer and the outwardly facing layer,
wherein the lamination layer has a higher loft than the patient
facing layer or the outwardly facing layer.
ANALYSIS
Obviousness of Claims 1, 3-9, 11, and 12 over Datta
We are persuaded by Appellant's arguments that the Examiner erred
in rejecting claims 1, 3-9, 11, and 12 over Datta. See Br. 7-12.
3 A revised copy of the Claims Appendix, including a correct copy of the
allowed claims and the claims on appeal, is included with a document styled
"Amended Appeal Brief Claims Appendix," (hereinafter "Second Br." filed
December 17, 2015).
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Appeal2017-003168
Application 13/832,965
In rejecting claim 1, the Examiner finds that Datta teaches an
absorbent article including a chassis having a first portion to which "side
panel 40 [is] operatively coupled." Ans. 3. While acknowledging that
"Datta does not specifically teach a securement portion," the Examiner
determines that Datta "teaches an adhesive portion 60 which functions as a
securement portion in that it secures the absorbent [pad] on an
undergarment" with "the underside of the absorbent [pad] inwardly of the
side panels." Id. The Examiner also finds "Datta teaches other attachment
means such as wings [that] may be used to hold the absorbent pad in
position relative to the ... wearer." Id. (citing Datta, col. 21, 11. 4--12).
Based on the foregoing, the Examiner reasons that it would have been
obvious "to position the adhesive on the side [panel portion] as a means for
providing a securement portion to hold the garment in place relative to
the ... wearer since wings are typically transversely outward of the
absorbent pad as are the side panels 40 [of Datta]." Id. at 3--4. The
Examiner also determines "[t]he [side panel] 40 has a width extending in a
lateral direction from the first longitudinal edge of the chassis first portion,"
that includes "a patient facing layer 31; a outwardly facing layer 30; and []
lamination [layers] 42, 44 positioned between the patient facing layer and
the outwardly facing layer." Id. at 5 (citing Datta, col. 10, 11. 52-57).
However, the Examiner misreads Datta. We agree with Appellant that
"side panel members 42 and 44, which the Examiner identifies as the
claimed lamination layer are not positioned between the backsheet 30 and
topsheet 31." Br. 11-12. As Appellant explains, "Datta specifically shows
that the side flaps [i.e., side panel members 42 and 44] wrap around the
outside surface of the backsheet 30," and there is "[n]othing in Datta [that]
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Appeal2017-003168
Application 13/832,965
suggests that the side flaps should, or even could be positioned between the
backsheet and top sheet, or any other layers taught by Datta." Id. at 12
(citing Datta, Fig. 3; col. 11, 11. 11-15).
We, therefore, find that the Examiner's legal conclusion of
obviousness is not supported by evidence and, thus, cannot stand. See In re
Warner, 379F.2d1011, 1017(CCPA1967) (holding that "[t]he legal
conclusion of obviousness must be supported by facts. Where the legal
conclusion is not supported by facts it cannot stand.").
For the foregoing reasons, we do not sustain the Examiner's rejection
of claims 1, 3-9, 11, and 12 over Datta.
Obviousness of Claim 10 over Datta and Sneller
The rejection of claim 10 over Datta and Sneller is based on the same
unsupported findings discussed above with respect to Datta and must be
reversed for similar reasons.
DECISION
We REVERSE the Examiner's rejections.
REVERSED
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