Ex Parte Roe et al

Patent Trial and Appeal Board

Dec 7, 2018

15161536 (P.T.A.B. Dec. 7, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/161,536 05/23/2016
27752 7590 12/11/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Donald Carroll Roe
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.
10644RC 7383
EXAMINER
KIDWELL, MICHELE M
ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
12/11/2018 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):
centraldocket.im @pg.com
pair_pg@firsttofile.com
mayer.jk@pg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DONALD CARROLL ROE, CARL LOUIS BERGMAN,
KIMBERLY ANN DREIER, CONSTANCE LEE SCHULTES,
BARRY ROBERT FEIST, and MARK JAMES KLINE 1
Appeal 2018-004 7 48
Application 15/161,536
Technology Center 3700
Before MICHAEL L. HOELTER, JAMES P. CAL VE, and
WILLIAM A. CAPP, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Office Action
finally rejecting claims 1-24. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 The Procter & Gamble Company is identified as the real party in interest
(Br. 1) and also is the applicant pursuant to 37 C.F.R. § 1.46.
Appeal 2018-004 7 48
Application 15/161,536
CLAIMED SUBJECT MATTER
Claims 1, 18, and 23 are independent. Claim 1 is reproduced below.
1. An absorbent article having a garment facing surface and
a body facing surface and including a first waist region, a
second waist region, and a crotch region disposed
intermediate the first waist region and the second waist
region, the absorbent article comprising:
a backsheet, the backsheet defining at least a portion of
the garment facing surface;
a topsheet, the topsheet defining at least a portion of the
body facing surface;
an absorbent core disposed between the topsheet and the
backsheet;
a tuck flap extending in a longitudinal direction from the
second waist region;
a first ear;
a second ear, the first ear and the second ear extending in
opposing lateral directions from the first waist region;
and
a fastening element disposed on the body facing surface
of the first ear and adapted to connect directly with the
backsheet.
Br. 9 (Claims App.).
REJECTIONS
Claims 1--4, 8-16, and 18-23 are rejected under 35 U.S.C. § I02(b) as
anticipated by Yamamoto (US 5,069,678, iss. Dec. 3, 1991).
Claims 5, 6, 17, and 24 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Yamamoto.
Claim 7 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Yamamoto and Coates (US 2005/0022291 Al, pub. Feb. 3, 2005).
2
Appeal 2018-004 7 48
Application 15/161,536
ANALYSIS
Claims 1-4, 8-16, and 18-23
Rejected As Anticipated By Yamamoto
Claims 1--4 and 8-16
The Examiner finds that Yamamoto discloses an absorbent article as
recited in claim 1 with a fastening element (pressure sensitive tape 18) on a
body facing surface (topsheet 6, 7) of the first ear (wing area 5) in Figure 1.
Final Act. 5, 11-12; Ans. 3. The Examiner finds that fastening element 18 is
adapted to connect directly with backsheet 8, 9 when unfolded from body
facing surface 6, 7 (Figure 1 ), and secured directly to backsheet 8, 9 of wing
5 in Figure 4. Final Act. 4--5 (annotating Fig. 4 of Yamamoto), 12; Ans. 3.
Appellants argue that Yamamoto discloses fastener 18 on the garment
facing surface of wing area 4 of diaper 1 in Figure 4 and therefore does not
disclose "a fastening element disposed on the body facing surface of the first
ear and adapted to connect directly with the backsheet" as claimed. Br. 3.
Appellant reproduces column 4, lines 9-22 of Yamamoto. Id.
The Examiner has the better position. Figure 4 of Yamamoto shows
pressure sensitive tape 18 connected directly to a garment facing backsheet 9
of a second wing area 5 (i.e., "at an intermediate step of its wearing
sequence" (Yamamoto 2:61---62)). Appellants do not dispute this finding.
Rather, Appellants argue that Figure 4 does not disclose tape 18 disposed on
the body facing surface of the first ear as claimed. Id. This argument is not
persuasive because the Examiner relies on Figure 1 for this feature. Final
Act. 4, 11-12; Ans. 3; see also ParkerVision, Inc. v. Qualcomm Inc., 903
F.3d 1354, 1361 (Fed. Cir. 2018) (prior art anticipates ifit is reasonably
capable of operating so as to meet the claim limitations even if it does not
meet the claim limitations in all modes of operation).
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Appeal 2018-004 7 48
Application 15/161,536
Yamamoto' s fastening tape 18 is disposed on body facing surface 7 of
first ear (wing area 5) in Figure 1. See Yamamoto, 3:49-52. The Examiner
correctly finds that fastening tape 18 is adapted to unfold from body facing
surface 7 shown in Figure 1 and connect directly to garment facing sheet 9
of another wing 5 shown in Figure 4. Ans. 3. Yamamoto describes tape
fastener 18 as secured directly to the other wing area. Yamamoto, 4: 11-16.
Appellants' arguments that Figure 4 does not disclose this limitation do not
address the Examiner's finding that the article in Figures 1 and 4 discloses
this claimed feature. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(approving of the Board's practice of requiring an applicant to identify the
alleged error in a examiner's rejection); 37 C.F.R. § 4I.37(c)(l)(iv) ("The
arguments shall explain why the examiner erred as to each ground of
rejection contested by appellant."); see also In re Mullin, 481 F.2d 1333,
1335-36 (CCPA 1973) (holding that an intermediate structure that is
intended and appreciated can anticipate even if it is not an end use item).
Thus, we sustain the rejection of claims 1--4 and 8-16.
Claims 18-22
Here, the dispute centers around whether Yamamoto discloses "an
elastic waist feature connected with the body facing surface and defining at
least a portion of the first outer edge of the chassis" as recited in claim 18.
The Examiner finds that Figure 1 of Yamamoto discloses an elastic
waist feature ( elastic member 16) that is connected with the body facing
surface and defining at least a portion of the first outer edge of the chassis
( which comprises a garment facing surface and a body facing surface). Final
Act. 7. The Examiner also relies on Yamamoto' s disclosure that diaper 1
includes "an elastic member 16 extending along the upper edge of the back
area 4." Yamamoto, 3:45--46; Final Act. 12 (citing id.); Ans. 3.
4
Appeal 2018-004 7 48
Application 15/161,536
In response, Appellants reproduce Figure 1 in their brief and argue
that "the elastic member 16 shown in Figure 1 of Yamamoto does not define
at least a portion of the first outer edge of the chassis." Br. 5. Appellants
then argue that "Yamamoto is not understood to teach or suggest the elastic
waist feature recited in claim 18." Id. at 6.
The Examiner has the better position and Appellants do not apprise us
of error in the Examiner's reliance on Yamamoto' s disclosure that the elastic
member extends along the upper edge of the diaper's back area to support a
finding that elastic member 16 is "defining at least a portion of the first outer
edge of the chassis" as claimed. We agree that Yamamoto discloses the
elastic member as defining a portion of the outer edge of the diaper chassis.
Appellants disclose that their elastic waist feature 152 may extend
outwardly from absorbent core 144 and "generally form at least a portion of
the first outer edge 130 of the diaper 102." Spec. 18:5-7 (emphasis added).
However, claim 18 does not require the elastic waist feature to form part of
the outer edge of the chassis. Instead, claim 18 recites that the elastic waist
feature is "defining at least a portion of the first outer edge of the chassis."
An ordinary meaning of "define" is "to fix or mark the limits of."
Definition of define by Merriam-Webster at http://www.merriam-webster.
com/dictionary/define (last viewed Nov. 29, 2018). Yamamoto discloses
that elastic member 16 defines an upper edge of the back area of diaper 1 by
"extending along the upper edge of the back area 4." Yamamoto, 3 :45--46.
Figure 1 of Yamamoto also discloses elastic member 16 "defining" an
upper edge of diaper 1 by fixing or marking the limits of the upper edge.
We do not interpret claim 18 to require the elastic waist feature to "form" or
to be part of the upper edge when claim 18 only requires it to "define" a
portion of the first outer edge.
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Appeal 2018-004 7 48
Application 15/161,536
By extending along the upper edge of diaper 1, elastic member 16
defines part of the first outer edge of the chassis as claimed. It thereby fixes
or marks the upper edge of diaper 1. Appellants' arguments that Figure 1 of
Yamamoto does not disclose this feature is not persuasive in view of our
interpretation above and also does not apprise us of error in the Examiner's
findings that Yamamoto discloses this feature at column 3, lines 45--46.
Final Act. 12; Ans. 3. Thus, we sustain the rejection of claims 18-22.
Claim 23
Independent claim 23 recites an absorbent article with "an anchoring
system means connecting the absorbent core with the chassis and for
collecting forces tending to move the absorbent article during use, wherein
the anchoring system means is adapted to be anchored to a wearer's body by
contacting various parts of the body."
The Examiner relies on Yamamoto' s pressure sensitive tapes 17, 18 to
disclose this feature. Final Act. 8, 12; Ans. 3--4. The Examiner finds that
the tapes are "used to secure the front area ( which includes the core) to the
wing areas (which define the chassis)." Final Act. 12; see Ans. 3--4.
Appellants argue that Yamamoto' s fastening tapes 1 7, 18 do not form
an anchoring system means that connects the absorbent core with the chassis
as claimed. Br. 6. Appellants have the better position because claim 23, by
its plain language, requires the anchoring system means to connect the core
with the chassis. Yamamoto' s fastening tapes 17, 18 connect backsheets 9
of wings 5 to one another and also connect front area 2 to the wing areas.
Yamamoto, 4:9-22. Because fastening tapes 17, 18 are disposed on
top sheet 7 and backsheet 9, they do not connect to or contact absorbent
core 11, 13, which is positioned between these sheets and on an opposite
side, away from and out of contact with the fastening elements.
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Appeal 2018-004 7 48
Application 15/161,536
We interpret "an anchoring system means" as a means plus function
limitation under 35 U.S.C. § 112, sixth paragraph. The presumption arising
from the use of "means" is not rebutted by any structure being recited for the
anchoring system. Claim 23 recites only functions of the "anchoring system
means" for connecting the absorbent core structure with chassis structure.
Appellants disclose their anchoring system in U.S. patent application
11/599,851, filed on November 15, 2006 (docket I0628Q) and 11/599,862,
filed November 15, 2006 (docket I0432MQ). These applications have been
published respectively as US 2007 /0287982 Al (pub. Dec. 13, 2007) and US
2007 /0287983 Al (pub. Dec. 13, 2007). Spec. 17:20-18:2 (incorporating by
reference applications with docket numbers 10628Q and 10432MQ, which
were filed on November 15, 2006). These applications disclose anchoring
system means that include circumferential anchoring members (CAM) and
load distribution elements (LDE) that directly connect an absorbent core to
the diaper chassis. See, e.g., '982 Application ,r,r 60, 74, 75, Figs. IE, IF;
'983 Application ,r,r 90-101, and Figs. IA-IC, 11, 12A.
The Examiner has not identified where Yamamoto discloses an
anchoring system means with structure that connects absorbent core 10, 11
to the diaper chassis. Thus, we do not sustain the rejection of claim 23.
Claims 5, 6, 17, and 2 4
Rejected As Unpatentable Over Yamamoto.
Appellants argue the patentability of claims 5, 6, 17, and 24 based on
their dependency from claims 1 and 23. Appeal Br 6-7. Because we sustain
the rejection of claim 1, we also sustain the rejection of claims 5, 6, and 17.
Because we do not sustain the rejection of claim 23, we do not sustain the
rejection of claim 24, which depends therefrom.
7
Appeal 2018-004 7 48
Application 15/161,536
Claim 7
Rejected As Unpatentable Over Yamamoto and Coates
Appellants argue that Coates does not cure Yamamoto' s deficiencies
as to claim 1 from which claim 7 depends. Appeal Br 7. Because we
sustain the rejection of claim 1, this argument is not persuasive and we also
sustain the rejection of claim 7.
DECISION
We affirm the rejections of claims 1-22, and we reverse the rejections
of claims 23 and 24.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
8