11021546 (B.P.A.I. Jan. 31, 2012)

Ex Parte Quincy

Board of Patent Appeals and InterferencesJan 31, 2012

11021546 (B.P.A.I. Jan. 31, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE 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. 11/021,546 12/23/2004 Roger Bradshaw Quincy III KCX-914 (20798) 3390 22827 7590 01/31/2012 DORITY & MANNING, P.A. POST OFFICE BOX 1449 GREENVILLE, SC 29602-1449 EXAMINER STEPHENS, JACQUELINE F ART UNIT PAPER NUMBER 3761 MAIL DATE DELIVERY MODE 01/31/2012 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 ROGER BRADSHAW QUINCY III __________ Appeal 2010-009368 Application 11/021,546 Technology Center 3700 __________ Before DEMETRA J. MILLS, ERIC GRIMES, 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 rejection of claims 31-33, 35, 37-39, 42, 43, and 45-63. We have jurisdiction under 35 U.S.C. § 6(b). Appeal 2010-009368 Application 11/021,546 2 STATEMENT OF THE CASE Claims 31 and 60 are the independent claims on appeal, and may be found in the claim appendix to the Appeal Brief. In relevant part, the absorbent article in claim 31 requires a liquid impermeable layer, “wherein the liquid-impermeable layer comprises a fibrous substrate laminated to a liquid-impermeable film, the fibrous substrate containing an exothermic coating capable of activation in the presence of oxygen and moisture to generate heat.” The method of wearing an absorbent article as set forth in claim 60 similarly requires a liquid impermeable layer, “wherein the liquid-impermeable layer comprises a breathable film and further comprises a fibrous substrate laminated to the breathable film that contains an exothermic coating capable of activation in the presence of oxygen and moisture to generate heat.” Claims 31-33, 35, 37, 45, 46, 48-50, 52-56, 60, and 63 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Usui (U.S. Patent No. 5,879,378, issued March 9, 1999) (Ans. 3). In addition, claims 38, 39, 42, 43, 47, 51, 61, 62 stand rejected under 35 U.S.C. § 103(a) as being rendered obvious by Usui (id. at 5). We reverse the above rejections. ANALYSIS As to the limitations of the independent claims set forth above, the Examiner finds that “Usui teaches the exothermic layer is laminated to a gas-permeable film (col. 24, lines 20-26) and is laminated to a liquid- impermeable breathable film 6” (Ans. 4). Specifically, the Examiner finds Appeal 2010-009368 Application 11/021,546 3 that the “reaction layer is laminated to the liquid impermeable layer via its connection to intervening layers, which does include the auxiliary layer 4” (id. at 6). According to the Examiner, “[l]ayers can be laminated together and include intervening layers” (id.). Appellant argues that “an element laminated to another element (such as claimed by Appellant) requires the two elements to be directly bonded together” (App. Br. 9). We agree with Appellant. Independent claim 31 requires a “fibrous substrate laminated to a liquid-impermeable film, the fibrous substrate containing an exothermic coating capable of activation in the presence of oxygen and moisture to generate heat” and independent claim 60 requires a “fibrous substrate laminated to the breathable film that contains an exothermic coating.” The Examiner’s claim construction that the claim limitation of “laminated to” can include intervening layers reads the limitation of “laminated to” out of the claim, which we decline to do. We construe the claim limitation of “laminated to” to require that the fibrous substrate of claim 31 be directly laminated to the liquid-impermeable film, as well as the fibrous substrate of claim 60 to be directly laminated to the breathable film that contains an exothermic coating. As the Examiner’s anticipation rejection is predicated on the presence of an intervening layer, we are compelled to reverse it. As to the obviousness rejection, as the Examiner has not explained why Usui would have rendered it obvious to obtain the structure required by independent claims 31 and 60, we are compelled to reverse that rejection as well. Appeal 2010-009368 Application 11/021,546 4 SUMMARY The rejections of claims 31-33, 35, 37, 45, 46, 48-50, 52-56, 60, and 63 under 35 U.S.C. § 102(b) as being anticipated by Usui and claims 38, 39, 42, 43, 47, 51, 61, and 62 under 35 U.S.C. § 103(a) as being rendered obvious by Usui are reversed. REVERSED alw