Ex Parte Roe et al

Board of Patent Appeals and Interferences

Oct 30, 2009

10811696 (B.P.A.I. Oct. 30, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte DONALD CARROLL ROE, PANKAJ NIGAM,
MARK JAMES KLINE, JEROMY THOMAS RAYCHECK
and CARL LOUIS BERGMAN
__________

Appeal 2009-003626
Application 10/811,696
Technology Center 3700
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Decided: October 30, 2009
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Before TONI R. SCHEINER, RICHARD M. LEBOVITZ, and
FRANCISCO C. PRATS, Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of claims
1, 3, and 5-20, directed to an absorbent article. The claims have been
rejected on the grounds of anticipation and obviousness. We have
jurisdiction under 35 U.S.C. § 6(b).

Appeal 2009-003626
Application 10/811,696

STATEMENT OF THE CASE
Claim 1 is representative of the subject matter on appeal:
1. A unitary disposable absorbent article, comprising:
an absorbent core having a garment-facing surface and a body-facing
surface;
a liquid permeable topsheet positioned adjacent said body-facing
surface of said absorbent core;
a liquid impermeable backsheet positioned adjacent said garment-
facing surface of said absorbent core; said backsheet having a physical
variation along a longitudinal axis of the article, wherein said physical
variation defines a first backsheet zone and a second backsheet zone,
wherein said physical variation is as measured by a physical property
selected from the group consisting of at least one of basis weight, thickness
and density and at least one elastomeric element having at least one primary
direction of stretch, said elastomeric element at least partially overlapping
and joined to said second backsheet zone, wherein a relaxed pathlength of
said elastomeric element in the primary direction of stretch is less than a
total pathlength of said backsheet in the region of overlap.

The Examiner relies on the following evidence:

Dobrin et al. US 5,571,096 Nov. 5, 1996

The Examiner rejected the claims as follows:

• Claims 1, 3, 5-8, and 11-20 under 35 U.S.C. § 102(b) as anticipated
by Dobrin.

• Claims 9 and 10 under 35 U.S.C. § 103(a) as unpatentable over
Dobrin.

We reverse.

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Appeal 2009-003626
Application 10/811,696

ANTICIPATION
Issue
Claim 1, the only independent claim on appeal, is directed in pertinent
part to an absorbent article with a liquid impermeable backsheet comprising
first and second backsheet zones defined by “a physical variation along a
longitudinal axis of the article,” as measured by basis weight, thickness
and/or density.
The Examiner finds that Dobrin discloses an absorbent article with
“some physical variation in the longitudinal axis . . . between the apertured
and unapertured regions” of the article (Ans. 4).
Appellants contend that even “[i]f the differences between the
apertured and unapertured zones in the backsheet of the Dobrin reference are
such ‘physical variations,’” the variation “occur[s] only in the lateral
direction, not in the longitudinal direction” (App. Br. 8).
In view of these conflicting positions, the issue raised by this rejection
is as follows: Has the Examiner established that Dobrin describes an
absorbent article with a liquid impermeable backsheet comprising first and
second backsheet zones defined by “a physical variation along a longitudinal
axis of the article,” as measured by basis weight, thickness and/or density?
Findings of Fact
FF1 Claim 1 is directed to an absorbent article with a liquid
impermeable backsheet comprising first and second backsheet zones defined
by “a physical variation along a longitudinal axis of the article,” as measured
by basis weight, thickness and/or density.
FF2 Figure 2 of the Specification, reproduced immediately below, is
a plan view of an embodiment of the claimed invention:
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Application 10/811,696

Figure 2 is a plan view of a diaper 120 in its flat, uncontracted state, with
the garment-facing side of backsheet 126 facing the viewer, and showing
longitudinal axis 1000, and lateral axis 1100. The backsheet has two
backsheet zones, 160 and 170, differing from each other in basis weight,
thickness, and/or density. (Spec. 7, 11-12.)
FF3 Dobrin describes an absorbent article with breathable side
panels. The article comprises a topsheet, a backsheet, and an absorbent core
between the topsheet and backsheet. The backsheet comprises three distinct
zones: a central non-apertured zone, and a pair of apertured zones flanking
the central zone. (Dobrin, col. 2, ll. 14-29.)
FF4 Dobrin’s Figure 1, reproduced immediately below, shows the
orientations of longitudinal axis 100 and lateral axis 110 on a plan view of
the inner, body-facing surface of Dobrin’s article, in this case diaper 20, in
its flat, uncontracted state:
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Application 10/811,696

Figure 1 is a plan view of the inner, body-facing surface of Dobrin’s diaper
20, in its flat, uncontracted state.
The diaper . . . has two centerlines, a longitudinal centerline 100
and a transverse centerline 110. The term ‘longitudinal’ . . .
refers to a line, axis, or direction in the plane of the diaper 20
that is generally aligned with (e.g. approximately parallel with)
a vertical plane which bisects a standing wearer into left and
right halves when the diaper 20 is worn. The terms ‘transverse’
and ‘lateral’ . . . are interchangeable and refer to a line, axis or
direction which lies within the plane of the diaper that is
generally perpendicular to the longitudinal direction . . .

(Dobrin, col. 3, l. 63 to col. 4, l. 6).
FF5 Dobrin’s Figure 2, reproduced immediately below, is a
plan view of the backsheet of diaper 20:
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Figure 2 is a plan view of the backsheet 26 of Dobrin’s diaper 20, showing
non-apertured zone 82 coextensive with central region 74, and two apertured
zones 80 coextensive with outer regions 76, each extending laterally away
from central region 74 (Dobrin, col. 7, ll. 35-67; col. 8, ll. 42-44).
FF6 Dobrin’s Figure 3, reproduced immediately below, is a cross-
sectional view of the backsheet shown in Figure 2:

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Figure 3 is a cross sectional view of the backsheet shown in Figure 2
(Dobrin, col. 2, ll. 54-55).
FF7 The Examiner and Appellants agree that Dobrin’s Figure 3
represents a cross section taken along a lateral axis of the backsheet of
Dobrin’s diaper 20 (Ans. 7; App. Br. 8).
Principles of Law
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of California, 814
F.2d 628, 631 (Fed. Cir. 1987).
During examination, the PTO must interpret terms in a claim using
“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).
Analysis
The Examiner rejected claims 1, 3, 5-8, and 11-20 as anticipated by
Dobrin. According to the Examiner, “[t]he backsheet of Dobrin has a
physical variation along at least one axis . . . [which] defines a first
backsheet zone and a second backsheet zone . . . measured by the physical
properties of thickness, weight, and density as Dobrin discloses
microapertured regions and unapertured regions of the backsheet” (Ans. 4).
The Examiner concedes that Dobrin’s “Figure 2 shows a physical variation
in the lateral axis between zones 76 and 74” (id.), but finds that “there is
some physical variation in the longitudinal axis as well, which is
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Application 10/811,696

demonstrated in Figure 3 between the apertured and unapertured regions of
zone 76 [sic, 80]” (id.).
The Examiner’s reliance on Dobrin’s Figures 2 and 3 does not support
a finding that Dobrin discloses a backsheet comprising first and second
backsheet zones defined by “a physical variation along a longitudinal axis of
the article,” as required by the claims. If we understand the basis of the
Examiner’s finding, it is that a longitudinal axis parallel to the longitudinal
axis 1000 shown in Dobrin’s Figure 2, but entirely within zone 76/80, would
pass through a myriad of sub-zones as it travels from one aperture to the
next through Dobrin’s backsheet in the direction of the front waist region 46
to the rear waist region 44. This interpretation of Dobrin would require each
aperture in zone 76/80 to be a “zone” in and of itself, and the surfaces
between apertures to be zones as well. We don’t agree that one of ordinary
skill in the art would interpret the individual apertures and the surfaces
between individual apertures in Dobrin’s zone 76/80 to be the first and
second backsheet zones defined by a physical variation, especially given the
depictions of first and second backsheet zones in the present Specification’s
drawings, e.g., first and second backsheet zones 160 and 170 in Figure 2 of
the Specification (FF2). Rather, the apertures and surfaces appear to
constitute the physical variations covered by the claims, rather than the
zones themselves.
Dobrin’s Figures 2 and 3 clearly show zones with physical variation
in the backsheet along a lateral axis, but not a longitudinal axis of the
backsheet.
Conclusions of Law
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Appeal 2009-003626
Application 10/811,696

The Examiner has not established that Dobrin describes an absorbent
article with a liquid impermeable backsheet comprising first and second
backsheet zones defined by “a physical variation along a longitudinal axis of
the article,” as measured by basis weight, thickness and/or density.
OBVIOUSNESS
Issue
The Examiner rejected claims 9 and 10 as unpatentable over Dobrin
(Ans. 6).
The issue raised by this rejection is as follows: Has the Examiner
established that an absorbent article with a backsheet comprising first and
second backsheet zones defined by “a physical variation along a longitudinal
axis of the article,” as measured by basis weight, thickness and/or density
would have been obvious, given Dobrin’s disclosure?
Analysis
Claims 9 and 10 depend from claim 1, and therefore require the
limitations of claim 1. However, as discussed above, Dobrin does not
disclose an absorbent article comprising a backsheet with zones defined by a
physical variation along a longitudinal axis of the article. The Examiner’s
rejection does not address this underlying deficiency in the reference.
Conclusions of Law
The Examiner has not established that an absorbent article with a
backsheet comprising first and second backsheet zones defined by “a
physical variation along a longitudinal axis of the article,” as measured by
basis weight, thickness and/or density would have been obvious, given
Dobrin’s disclosure.
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Appeal 2009-003626
Application 10/811,696

SUMMARY
• The rejection of claims 1, 3, 5-8, and 11-20 under 35 U.S.C. § 102(b)
as anticipated by Dobrin is reversed.

• The rejection of claims 9 and 10 under 35 U.S.C. § 103(a) as
unpatentable over Dobrin is reversed.

REVERSED

cdc

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