Ex Parte Veglio et al

Board of Patent Appeals and Interferences

Jun 19, 2012

10790418 (B.P.A.I. Jun. 19, 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.
10/790,418 03/01/2004 Paolo Veglio 9562 1478
27752 7590 06/20/2012
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
CRAIG, PAULA L
ART UNIT PAPER NUMBER
3778
MAIL DATE DELIVERY MODE
06/20/2012 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 PAOLO VEGLIO, IVANO GAGLIARDI,
GIOVANNI CARLUCCI, ROBERTO D'ADDARIO, and
VINCENZO PARTENZA
____________

Appeal 2010-002771
Application 10/790,418
Technology Center 3700
____________

Before LINDA E. HORNER, MICHAEL C. ASTORINO, and
JOHN W. MORRISON, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1-7 and 9-20. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b). We REVERSE.
Appeal 2010-002771
Application 10/790,418

2
REJECTIONS
Claims 1-4, 6, 7, 10, 12-14, 16, and 17 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Wang (US 4,713,069, issued Dec. 15, 1987)
and Horney (US 5,549,589, issued Aug. 27, 1996).
Claims 5, 9, and 11 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Wang, Horney, and Kudo (US 2003/0187417 A1,
published Oct. 2, 2003).
Claims 15 and 18-20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Wang, Horney, and Carstens (US 6,582,411 B1, issued
Jun. 24, 2003).

CLAIMED SUBJECT MATTER
The claimed subject matter pertains to a sanitary napkin including,
from top to bottom, a fluid permeable top sheet, an absorbent core, fluid
impermeable barrier, and a fluid permeable backsheet. Spec. 2: 17, 18, 23-
25. Claims 1, 18, and 20 are the independent claims on appeal. Claim 1 is
illustrative of the subject matter on appeal and recites:
1. A sanitary napkin having a body-facing side and a garment-
facing side, the sanitary napkin comprising a fluid permeable
topsheet, a fluid permeable backsheet, and an absorbent core
disposed therebetween, wherein,
a. said absorbent core comprises relatively hydrophilic
material defining a core outer periphery;
b. said topsheet and said backsheet comprise relatively
hydrophobic nonwoven material, at least one of said topsheet
and said backsheet defining a sanitary napkin outer periphery
that is substantially larger than said core outer periphery, the
area between said core outer periphery and said sanitary napkin
outer periphery being a breathable zone that completely
surrounds said core outer periphery;
Appeal 2010-002771
Application 10/790,418

3
c. said sanitary napkin further comprising a fluid
impermeable barrier between said backsheet and said absorbent
core, said fluid impermeable barrier being disposed within said
core outer periphery and not extending beyond said core outer
periphery, and
d. wherein said garment-facing side has thereon pressure
sensitive adhesive for affixing to a wearer's undergarment.

Claims 18 and 20 also call for a sanitary napkin that includes a fluid
permeable backsheet. App. Br., Claims Appendix.

OPINION
The Examiner finds that Wang’s sanitary pad 10 including a fluid
pervious cover 13, absorbent material 12, central zone 14 of baffle 11, and
non-central zone of baffle 11 corresponds to the sanitary napkin including a
fluid permeable topsheet, absorbent core, fluid impermeable barrier, and a
fluid permeable backsheet, respectively. Ans. 4. The Appellants contend
that the baffle 11, which includes the non-central zone of baffle 11, is not a
backsheet. See App. Br. 3. More specifically, the Appellants assert that the
claimed backsheet “constitutes an outer layer on the garment-facing side of
the sanitary napkin . . . . As such, the baffle 11 of Chen et al. [Wang] cannot
constitute a backsheet as it is not an outer layer of the absorbent article.”
App. Br. 3. Contrary to the Appellants’ construction of the term “backsheet”
the Examiner determines that “[t]he claims do not require that the backsheet
is an outer layer of the absorbent article.” Ans. 17. Thus, the issues
presented in this appeal are: first, whether the term “backsheet” is required
to be an outer layer; and second, whether the non-central zone of baffle 11 is
a backsheet as claimed.
Appeal 2010-002771
Application 10/790,418

4
First, when construing claim terminology in the United States Patent
and Trademark Office, claims are to be given their broadest reasonable
interpretation consistent with the specification, reading claim language in
light of the specification as it would be interpreted by one of ordinary skill in
the art. See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004). The Specification at page 4, lines 18-20 recites “[t]o provide a
degree of softness and vapor permeability for the garment-facing side of
pantiliner 10, a vapor permeable outer layer, referred to herein as backsheet
22, is provided adjacent the absorbent core 20 on the garment-facing side of
the absorbent core 20.” (Italics added); see App. Br. 3. Thus, the
Specification provides one of ordinary skill in the art with interpretative
guidance of the term “backsheet” to be a garment-facing outer layer of a
pantiliner or sanitary napkin.1 In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997) (“[I]t would be unreasonable for the PTO to ignore any interpretive
guidance afforded by the applicant's written description.”); see In re Suitco
Surface, Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010). This interpretation of
“backsheet” to refer to a garment-facing outer layer is also consistent with
the use of the term in the art. See, e.g., Horney, col. 12, ll. 13-15 (describing
that Horney’s “backsheet 23 and the topsheet 22 are positioned adjacent the
garment surface and the body surface, respectively, of sanitary napkin 20”),
and col. 14, ll. 27-30 (describing that Horney’s “backsheet 23 prevents
exudates absorbed and contained in the absorbent core 25 from wetting

1 The Specification at page 3, ll. 5-9, states “[w]hile the invention is
disclosed in a particularly preferred embodiment of a pantiliner, the
described invention can also be considered as a sanitary napkin, and all
descriptions below with respect to pantiliners can be sanitary napkins as
well, with the difference being one of degree rather than kind.”
Appeal 2010-002771
Application 10/790,418

5
articles which contact the sanitary napkin 20 such as pants, pajamas and
undergarments.”)
Second, Wang describes that “sanitary pad 10 comprises baffle 11 and
absorbent material 12 wrapped with a fluid pervious cover 13.” Wang, col.
14, ll. 4, 5, figs. 1, 2. As such, the non-central zone of baffle 11 is not an
outer layer of a pantiliner or sanitary napkin that faces a garment because it
is within the wrapping of the fluid pervious cover 13. See App. Br. 3.
Further, the Examiner does not find that the underside of Wang’s fluid
pervious cover 13 or Horney’s backsheet 23 corresponds to the backsheet as
recited in the claims and as we construe the term.
Thus, the rejection of claims 1-4, 6, 7, 10, 12-14, 16, and 17 as
unpatentable over Wang and Horney is not sustained. The remaining
rejections rely on the same erroneous finding as discussed above, i.e., that
the non-central zone of baffle 11 is a backsheet as recited in the claims.
Thus, the rejections of claims 5, 9, and 11, as unpatentable over Wang,
Horney, and Kudo, and claims 15 and 18-20 as unpatentable over Wang,
Horney, and Carstens are not sustained.

DECISION
We REVERSE the rejections of claims 1-7 and 9-20.

REVERSED

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