Ex Parte Nordness et al

Board of Patent Appeals and Interferences

Jan 23, 2009

10642850 (B.P.A.I. Jan. 23, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte CYNTHIA H. NORDNESS, KENT A. FRANKLIN, and
KATHERINE C. WHEELER
__________

Appeal 2008-4683
Application 10/642,850
Technology Center 3700
__________

Decided: January 23, 2009
__________

Before DONALD E. ADAMS, DEMETRA J. MILLS, and
LORA M. GREEN, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1-7, 9-20, 22-30, 32-38, and 40. We
have jurisdiction under 35 U.S.C. § 6(b).

STATEMENT OF THE CASE
The claims are directed to an absorbent structure. Claim 1 is
representative of the claims on appeal, and reads as follows:

Appeal 2008-4683
Application 10/642,850

1. An absorbent garment comprising:
a composite structure, the composite structure having end edges and
side edges, the end edges and the side edges defining a perimeter and a
central region within the perimeter of the composite structure;
the composite structure including a liquid-permeable body side liner,
an outer cover, an absorbent assembly between the body side liner and the
outer cover; and
a continuous mesh liner attached to the composite structure adjacent
to the body side liner with no intervening layers between the mesh liner and
the body side liner, wherein the mesh liner is permeable to sand, and the
mesh liner is coextensive with the composite structure and is attached to the
composite structure along the perimeter of the composite structure and
unattached to the composite structure in the central region of the composite
structure.
The Examiner relies on the following references:
Allen 5,037,416 Aug. 6, 1991
Freeland 4,990,147 Feb. 5, 1991
Mizutani et al. 2002/0028624 A1 Mar. 7, 2002
We reverse.

ISSUE
The Examiner finds that Allen anticipates the absorbent garment of
independent claims 1, 20, 27, and 34.
Appellants contend that Allen does not teach a mesh liner as required
by independent claims 1, 20, 27, and 34.
2
Appeal 2008-4683
Application 10/642,850

Thus, the issue on Appeal is: Does Allen teach a mesh liner as
required by claim 1, as well as required by the other independent claims?

FINDINGS OF FACT
FF1 The invention is drawn “disposable swimpants and swimsuits for
incontinent adults and children.” (Spec. 1.)
FF2 According to the Specification, “the swimpants include a material
which is permeable to fluid, but substantially impermeable to larger bowl
movement material.” (Id.)
FF3 The Specification teaches that a mesh liner can be a layer within a
garment, such as a disposable swimpant, wherein the mesh layer is
positioned closest to the body of the wearer and is on top of the body side
liner (id. at 4).
FF4 The Specification specifically defines a mesh material as
a material that has the ability to allow fluid and particulates of a
specific size range to filter through. This can be accomplished
by mechanical means (e.g., pin roll aperturing) or the process
by which to make the material (hydroentangling, meltblowing,
spunbonding). The material has an open network that allows
fluid or particulates of a specific size to pass through it.

(Id. at 11.)
FF5 The Specification teaches further that
in the embodiment in which a mesh liner is a layer within a
disposable swimpant, the garment can contain urine and bowel
movements like a typical diaper or training pant. When the
garment is worn before or while swimming, larger bowel
movement material is kept inside the garment, specifically
within the mesh liner, because the mesh liner of the invention is
substantially impermeable to larger bowel movement material.
In addition, any sand within the swimpant from before or after
3
Appeal 2008-4683
Application 10/642,850

swimming will pass through the mesh liner. In this way, sand
will not stay in direct contact with the wearer’s skin.

(Id. at 5.)
FF6 The Examiner rejects claims 1-3, 7-12, 14-20, 22-29, 32-27, and 40
under 35 U.S.C. § 102(b) as being anticipated by Allen (Ans. 3).
FF7 The Examiner finds that Allen discloses an absorbent article, wherein
a “continuous mesh liner 12 is attached to the composite structure with no
intervening layers between it and the body side liner, as shown in figure 6.”
(Id.)
FF8 The Examiner finds further that “the mesh liner 12 is coextensive with
the composite and attached to the composite around its perimeter.” (Id.
(citing Allen, col. 3, ll. 35-39).) In addition, the Examiner finds, the “mesh
liner 12 is unattached to the composite in the central region.” (Ans. 3 (citing
Allen, col. 12, ll. 63-64).)
FF9 One embodiment of the swim diaper of Allen is shown in Figure 2,
reproduced below.

4
Appeal 2008-4683
Application 10/642,850

Figure 2 is a top plan view of disposable diaper of Allen, showing the core
and backsheet partially in cutaway (col. 2, ll. 26-31).
FF10 The diaper comprises a “liquid pervious topsheet 12, a liquid
impervious backsheet 16, and an absorbent core 18 disposed intermediate
the topsheet 12 and the backsheet 16. The topsheet 12 and the backsheet 16
are at least partially peripherally joined to ensure the core 18 is held in the
desired position.” (Id. at ll. 58-63).
FF11 As shown in Figure 2, the topsheet 12 and the backsheet 16 “are
generally coextensive.” (Col. 3, ll. 35-39.) Moreover, “[j]oining of the
topsheet 12 and the backsheet 16 to and throughout the absorbent core 18 is
generally desirable.” (Id. at ll. 48-50.)
FF12 Allen also teaches that the topsheet may be made of a laminate 13
having at least two layers (id. at col. 6, ll. 13-15).
FF13 Figure 6 of Allen, which the Examiner relies upon, shows a second
embodiment of the diaper of Allen. Figures 5 and 6, drawn to that
embodiment, are reproduced below.
5
Appeal 2008-4683
Application 10/642,850

FF14 Figure 5 is a top view of the second embodiment of a diaper “having a
passageway to allow communication of solid waste materials . . .
incorporating a topsheet.” (Allen, col. 2, ll. 38-41.) Figure 6 shows a
vertical view of the diaper of Figure 5 (id. at ll. 42-43).
FF15 The Examiner finds that the liner 12´ of Figure 6 reads on the mesh
liner and a body side liner located adjacent to the absorbent core (not
numbered), wherein the mesh liner is attached to the periphery of the article,
but unattached to the central portion (Ans. 6).
FF16 The diaper depicted in Figures 5 and 6 of Allen has a passageway 21´,
in the form of an aperture (Allen, col. 12, ll. 9-32).
FF17 The waste material enters a void space between the topsheet 12´ and
the absorbent core 18´ (id. at ll. 43-50).
6
Appeal 2008-4683
Application 10/642,850

FF18 The Examiner also rejects claims 4 and 6 under 35 U.S.C. § 103(a) as
being obvious over the combination of Allen and Freeland (Ans. 4).
FF19 Freeland is cited for teaching that “polyurethane nonwoven materials,
such as polypropylene and polyethylene, and nylon are suitable and
equivalent material for use as the liner of an absorbent garment.” (Id. at
4-5.)
FF20 The Examiner further rejects claims 5, 30, and 38 under 35 U.S.C.
§ 103(a) as being obvious over the combination of Allen and Mitzutani (id.
at 5).
FF21 Mitzutani is cited for teaching “that polypropylene nonwoven
materials and SMS webs are suitable and equivalent material for use as the
liner of an absorbent garment.” (Id.)
FF22 Finally, the Examiner rejects claims 13 and 24 under 35 U.S.C.
§ 103(a) as being obvious over Allen (id. at 5).
FF23 The Examiner notes that Allen discloses all of the aspects of the
claimed invention, except for the hole size of the mesh liner (id.). The
Examiner concludes, however, that it would have been
obvious to one of ordinary skill in the art at the time of
invention to make the hole size of the mesh liner in a range of
147-5810 microns, since it has been held that where the general
conditions of the claim are disclosed in the prior art, finding the
optimum or workable ranges involves only routine skill in the
art.

(Id. at 5-6).

7
Appeal 2008-4683
Application 10/642,850

PRINCIPLES OF LAW
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) the level of ordinary skill in the art; (3) the differences between the
claimed invention and the prior art; and (4) secondary considerations of
nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17 (1966).
The Supreme Court has recently emphasized that “the [obviousness] analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” KSR
Int’l v. Teleflex Inc., 550 U.S. 398, ___, 127 S. Ct. 1727, 1741 (2007).
While the analysis under 35 U.S.C. § 103 as set forth in KSR allows
flexibility in determining whether a claimed invention would have been
obvious, it still requires showing that “there was an apparent reason to
combine the known elements in the fashion claimed by the patent at issue.”
Id. at 1741. “We must still be careful not to allow hindsight reconstruction
of references to reach the claimed invention without any explanation as to
how or why the references would be combined to produce the claimed
invention.” Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1374 n.3
(Fed. Cir. 2008).

ANALYSIS
Appellants argue that Allen does not teach or suggest a separate mesh
liner (App. Br. 5). Specifically, as to the first embodiment of Allen,
Appellants argue that the laminate 13, forming part of the topsheet, is also
part of the composite structure (id at 6-7).
8
Appeal 2008-4683
Application 10/642,850

In the second embodiment of Allen, Appellants argue that the topsheet
includes a hole or aperture 21´ that allows the fecal matter to enter a void
space 28´ between the topsheet 12´ and absorbent core 18 (id. at 7). Thus,
the liner 12´ is not continuous (Reply Br. 2).
We agree.
The Examiner relies on the first embodiment of Allen for its teaching
that that the mesh liner 12 is coextensive with the composite and attached to
the composite around its perimeter (FF8 (citing col. 3 of Allen, which is
drawn to the first embodiment).). However, in that embodiment, there is no
separate mesh liner “attached to the composite structure adjacent to the body
side liner with no intervening layers between the mesh liner and the body
side liner, . . . [wherein] the mesh liner is coextensive with the composite
structure and is attached to the composite structure along the perimeter of
the composite structure and unattached to the composite structure in the
central region of the composite structure” as required by claim 1. While
Allen does teach that the topsheet may comprise a laminate, in that
embodiment if one layer of the laminate were to be read as being the mesh
layer and the other layer of the laminate were to be read as the body side
liner, it would still not meet the limitation wherein the mesh liner is attached
to the composite structure along the perimeter of the composite structure and
unattached to the composite structure in the central region of the composite
structure. Thus, the first embodiment of Allen does not anticipate the
absorbent garment of claim 1.
As to the second embodiment of Allen, shown in Figure 6 of that
reference, while we agree with the findings of the Examiner regarding
Figure 6 (FF15), the Examiner has not taken into consideration the aperture
9
Appeal 2008-4683
Application 10/642,850

21´. Because of the aperture 21´, the mesh liner is no longer coextensive
with the composite structure. Thus, the second embodiment of Allen also
does not anticipate the absorbent garment of claim 1. Moreover, the
Examiner has not pointed to any place in Allen that teaches removing the
aperture 21´ from the second diaper embodiment.
Therefore, Allen does not anticipate the absorbent garment of claim 1.
As the remaining independent claims (claims 20, 27, and 34) also require the
limitations discussed above, Allen also does not anticipate those claims. As
the remaining rejections do not remedy the deficiencies discussed above,
those rejections also cannot stand.

CONCLUSIONS OF LAW
We thus find that Allen does not teach a mesh liner as required by
claim 1, as well as required by the other independent claims.
We thus reverse the rejection of claims 1-3, 7-12, 14-20, 22-29, 32-27,
and 40 under 35 U.S.C. § 102(b) as being anticipated by Allen. As the
remaining rejections do not remedy the deficiencies of that rejection, we also
reverse the rejection of claims 4 and 6 under 35 U.S.C. § 103(a) as being
obvious over the combination of Allen and Freeland; the rejection of claims
5, 30, and 38 under 35 U.S.C. § 103(a) as being obvious over the
combination of Allen and Mitzutani; as well as the rejection of claims 13
and 24 under 35 U.S.C. § 103(a) as being obvious over Allen.

REVERSED

10
Appeal 2008-4683
Application 10/642,850

LP
CHRISTOPHER M. GOFF
ARMSTRONG TEASDALE LLP
ONE METROPOLITAN SQUARE
SUITE 2600
ST. LOUIS, MO 63102

11