Ex Parte Ragnarson et al

Board of Patent Appeals and Interferences

Jan 23, 2009

10203289 (B.P.A.I. Jan. 23, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte CHRISTINA RAGNARSON, KENT HERMASSON
and ASA LINDSTROM
__________

Appeal 2008-3455
Application 10/203,289
Technology Center 3700
__________

Decided: January 23, 2009
__________

Before TONI R. SCHEINER, DONALD E. ADAMS, and ERIC GRIMES,
Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an
absorbent article, which the Examiner has rejected as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm the rejection of all the claims
except claim 9.
Appeal 2008-3455
Application 10/203,289

STATEMENT OF THE CASE
The Specification discloses an absorbent article (e.g., a diaper)
“distinguished primarily by the fact that the liquid-permeable cover sheet
has a central zone which is arranged essentially in the crotch portion of the
article, and two end zones which are arranged at the end portions of the
article, the liquid-permeable cover sheet being more hydrophilic in the
central zone than in the end zones” (Spec. 3: 24-28, emphasis added).
Claims 1-10 are pending and on appeal. Claim 1 is the only
independent claim and reads as follows:
1. An absorbent article for taking up body fluids, with a longitudinal
direction, a transverse direction, a crotch portion and two end portions, and
having side edges extending in the longitudinal direction and end edges
extending in the transverse direction, and comprising a liquid-permeable
cover sheet and a liquid-tight cover sheet, and an absorbent body arranged
between the cover sheets, and further comprising barriers which are arranged
along the side edges of the article and which are raised up from the liquid-
permeable cover sheet, wherein the liquid-permeable cover sheet has a
central zone arranged essentially in the crotch portion of the article, and two
end zones arranged at the end portions of the article, the liquid- permeable
cover sheet being more hydrophilic in the central zone than in the end zones
and wherein the difference in hydrophilicity between the central zone and
the end zones of the liquid-permeable cover sheet is obtained by the liquid-
permeable cover sheet comprising an essentially hydrophobic material
which has been treated to obtain hydrophilicity in the central zone, the
central zone of the liquid-permeable cover sheet having an extent in the
transverse direction of the article corresponding to 60-100% of a width of
the article.

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Application 10/203,289

OBVIOUSNESS
The Issue
The Examiner has rejected claims 1-10 under 35 U.S.C. § 103(a) as
obvious in view of Boberg.1 The Examiner finds that Boberg teaches an
absorbent article similar to the one claimed here but differing in that the
less-hydrophilic areas are disclosed as being on the sides, rather than at the
ends, of the article (Answer 3). The Examiner concludes that “it would have
been obvious . . . to form the end zones of Boberg less hydrophilic than the
central zone since the same benefits of directing the flow of body fluids into
the pocket from the sides . . . would result from directing the flow of body
fluids into the pocket from the ends” (Answer 5).
Appellants contend that Boberg does not teach or suggest an
absorbent article having end zones that are less hydrophilic than the central
zone.
The issue presented is: Would a person of ordinary skill in the art
would have considered it obvious to modify the absorbent article disclosed
by Boberg to have end zones that are less hydrophilic than the central zone?
Findings of Fact
1. Boberg discloses an absorbent article having a crotch portion, end
portions, side edges, a liquid-permeable cover sheet, a liquid-tight cover
sheet, and an absorbent body between the cover sheets (Boberg 6: 10-18).
2. Boberg discloses that the absorbent article comprises a barrier
layer raised up from the liquid-permeable cover sheet (id. at 13: 6-11; Fig.
3).

1 Boberg et al., WO 99/16398, published April 8, 1999.
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Application 10/203,289

3. Boberg discloses that the “barrier layer 15 advantageously has a
certain ability to withstand liquid penetration, as a result of which liquid
which has collected inside of the layer 15, between this and the liquid-
permeable cover layer 2, is prevented from penetrating out through the
layer” (id. at 12: 7-11).
4. Boberg discloses that the barrier layer can be located at both the
ends and sides of the article (id. at 18: 23-26; Figs. 1 and 3).
5. Boberg discloses that the “barrier layer 15 has the same planar
extension and shape as the liquid-permeable cover layer 2 and is fixed to the
latter, by adhesive bonding, welding or the like within the projecting cover
margin 5” (id. at 11: 35 to 12: 2).
6. Projecting cover margin 5 extends around the entire periphery of
Boberg’s absorbent article (id. at 10: 31-34; Fig. 1).
7. Boberg’s Figure 2 is reproduced below:

Figure 2 is a longitudinal cross section of Boberg’s absorbent article,
showing the liquid-permeable layer 2, liquid-impermeable layer 3, and
barrier layer 15 joined in margin 5.
8. Boberg’s Figure 3 is reproduced below:
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Application 10/203,289

Figure 3 is a transverse cross-section taken through the central portion
of Boberg’s absorbent article, and also shows the liquid-permeable layer 2,
liquid-impermeable layer 3, and barrier layer 15 joined in margin 5.
9. Boberg discloses that “the inside 16 of the barrier layer 15,
directed towards the liquid-permeable cover layer 2, and also an edge
portion 17, 18 of the liquid-permeable cover layer 2 along each side edge 9,
10 of the incontinence protector 1, are treated with a liquid repellent agent in
order to increase the safety against leakage” (id. at 12: 14-20).
10. Figure 3 shows that the liquid-permeable cover sheet 2 extends
from the left edge to the right edge of the absorbent article and therefore
“ha[s] an extent in the transverse direction of the article corresponding to 60-
100% of a width of the article,” as recited in instant claim 1.
11. Boberg discloses that “[i]t is also possible to start from a material
which is initially liquid-repellent and to then treat those parts of the barrier
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layer 15 and the liquid-permeable cover layer 2 which are to be more
hydrophilic with surfactants or other surface-active substances or
treatments” (id. at 12: 24-29).
12. Boberg does not expressly describe treating the liquid-permeable
cover layer to obtain greater hydrophilicity in the central zone than in the
end zones.
13. The present Specification discloses an absorbent article having a
“liquid-permeable cover sheet [that is] more hydrophilic in the central zone
than in the end zones” (Spec. 3: 27-28).
14. The Specification states that “[i]t has been found to be preferable
for the central zone . . . to have an extent in the longitudinal direction of the
article corresponding to 25-75% of the length of the article, and an extent in
the transverse direction of the article corresponding to 60-100% of the width
of the article” (id. at 5: 5-9).
15. The Specification does not define the central zone or end zones as
having any particular size.
16. Claim 1 does not require the central zone or end zones of the
claimed article to be any particular size.
Principles of Law
“[T]he PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary usage as they
would be understood by one of ordinary skill in the art, taking into account
whatever enlightenment by way of definitions or otherwise that may be
afforded by the written description contained in the applicant’s
specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
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Application 10/203,289

“[A] reference must be considered not only for what it expressly
teaches, but also for what it fairly suggests.” In re Baird, 16 F.3d 380, 383
(Fed. Cir. 1994).
“[A] patent composed of several elements is not proved obvious
merely by demonstrating that each of its elements was, independently,
known in the prior art. . . . [I]t can be important to identify a reason that
would have prompted a person of ordinary skill in the relevant field to
combine the elements in the way the claimed new invention does.” KSR
Int’l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1741 (2007).
“[W]hen the question is whether a patent claiming the combination of
elements of prior art is obvious,” the answer depends on “whether the
improvement is more than the predictable use of prior art elements according
to their established functions.” Id. at 1740.
The obviousness analysis “can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” Id. at
1741. “A person of ordinary skill is also a person of ordinary creativity, not
an automaton.” Id. at 1742.
Analysis
Boberg discloses an absorbent article that meets all the limitations of
claim 1 except for the requirement of “the liquid-permeable cover sheet
being more hydrophilic in the central zone than in the end zones.” Boberg
teaches, however, that leak-protection can be increased by making the inside
surface of the barrier layer, as well as an edge portion of the liquid-
permeable cover layer along the side edges, more liquid repellent (i.e., more
hydrophobic). Boberg also teaches that one method of achieving increased
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hydrophobicity in the edge portion is to start with a liquid-repellent material
and treat it to obtain hydrophilicity in areas where that is desired, as recited
in instant claim 1.
Although Boberg does not expressly suggest treating the end portions
of the liquid-permeable cover sheet the same way as the side edges, we
agree with the Examiner that doing so would have been obvious to a person
of ordinary skill in the art based on Boberg’s teachings.
Boberg teaches that the outer margin – at which the liquid-permeable,
liquid-impermeable, and barrier layers are joined – extends around the entire
periphery of the absorbent article. Therefore, the outer margin at the front
and back ends of the article would have the same structure as the side-edge
outer margin shown in Boberg’s Figure 3. Boberg also teaches that the
barrier layer, which extends to the front and back ends of the article,
functions to trap liquid between it and the liquid permeable cover layer.
Thus, a person of ordinary skill in the art would have recognized that the
problem of leakage along the side edges would also be expected to occur at
the front and rear ends of the article.
Therefore, it would have been obvious to address that potential
problem at the front and rear ends of the article in the same way that Boberg
teaches addressing it along the side edges – by making an edge portion of
the liquid-permeable cover layer at the ends more hydrophobic than the rest
of the liquid-permeable cover layer. In other words, it would have been
obvious to a person of ordinary skill in the art to extend the increased
hydrophobicity taught by Boberg for the side edges to the entire periphery of
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the absorbent article, in order to increase leakage protection all the way
around, rather than simply along the side edges.
The absorbent article suggested by the prior art would have a liquid-
permeable cover sheet with a central zone that is more hydrophilic than the
edge portions at the front and rear ends of the article near the outer margin of
the article; i.e., a liquid-permeable cover sheet that is more hydrophilic in a
central zone than in the end zones.
Appellants argue that “claim 7 recites that the central zone (which has
been treated to obtain hydrophilicity in the central zone) is centrally
arranged in the longitudinal direction of the article. For reasons stated
above, Boberg does not support the rejection of claim 7.” (App. Br. 11-12.)
We disagree. As discussed above, it would have been obvious to
extend Boberg’s hydrophobic edge to encompass the entire periphery of the
disclosed absorbent article. Doing so would produce an absorbent article
with a uniform zone of hydrophobicity at the front and rear edges, and
therefore a more-hydrophilic central zone centered longitudinally between
the less-hydrophilic end zones.
Appellants also argue that “[c]laim 8 recites that ‘the central zone of
the liquid-permeable cover sheet is arranged slightly offset towards one end
portion of the article.’ Boberg also does not support the rejection of claim
8.” (App. Br. 12.)
This argument is also unpersuasive. Although Boberg does not
suggest varying the width of the more-hydrophobic zone at the front and rear
ends, those of skill in the art would have recognized that the zones would
provide the same leak-protection property even if one of the more-
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hydrophobic zones at the front or rear ends was slightly wider than the other.
Such a modification is simply “the predictable use of prior art elements
according to their established functions,” KSR, 127 S.Ct. at 1740, and
therefore would have been obvious to a person of ordinary skill in the art.
The resulting absorbent article would have a more-hydrophilic central zone
slightly offset towards one end portion of the article, as recited in claim 8.
Finally, Appellants argue that “[c]laim 9 defines the central zone as
having an extent in the longitudinal direction of the article corresponding to
25% to 75% of a length of the article. Thus, claim 9 provides even more
detail of the central zone.” (App. Br. 12.)
We agree with Appellants with regard to claim 9. The Examiner
points to Boberg’s Figure 6 as showing a liquid-permeable cover sheet
having the properties recited in claim 9 (Ans. 9). That figure does not
adequately support the rejection on appeal. The “central zone” recited in
claim 9 is the zone of increased hydrophilicity relative to the end zones.
Boberg’s Figure 6 does not indicate which areas of the liquid-permeable
cover sheet are more hydrophilic, nor does Boberg’s description of the
Figure (Boberg, 17: 35 to 18: 19) describe the embodiment shown in the
figure as having the properties required by claim 9. The Examiner therefore
has not made out a prima facie case of obviousness with respect to claim 9.
SUMMARY
We affirm the rejection of claim 1 as obvious in view of Boberg.
Claims 2-6 and 10 fall with claim 1 because they were not argued separately.
37 C.F.R. § 41.37(c)(1)(vii). We also affirm the rejection of claims 7 and 8
on the same basis because Appellants’ arguments do not persuade us of any
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error in the Examiner’s rejection. However, we reverse the rejection of
claim 9.

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

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