Ex Parte Vogt et al

Board of Patent Appeals and Interferences

Jan 24, 2012

11262008 (B.P.A.I. Jan. 24, 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.
11/262,008 10/28/2005 Robert E. Vogt 21,714 9054
23556 7590 01/24/2012
KIMBERLY-CLARK WORLDWIDE, INC.
Tara Pohlkotte
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
KIDWELL, MICHELE M
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
01/24/2012 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 ROBERT E. VOGT, KEITH R. HAEN,
JAMES A. BOLDRA, and ALLEN J. DOHNALIK
____________

Appeal 2009-014565
Application 11/262,008
Technology Center 3700
____________

Before GAY ANN SPAHN, CHARLES N. GREENHUT, and
WILLIAM V. SAINDON, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Robert E. Vogt et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the Examiner’s rejection of claims 1-12 under 35 U.S.C. § 102(b)
as anticipated by DeNight (US 3,769,978, iss. Nov. 6, 1973). The Examiner
withdrew claims 13-17 from consideration. We have jurisdiction under 35
U.S.C. § 6(b).
Appeal 2009-014565
Application 11/262,008

2
The Invention
Claim 1, reproduced below, with italics added, is illustrative of the
subject matter on appeal.
1. An absorbent article defining a lateral direction and a
longitudinal direction perpendicular to said lateral direction, a
back waist region, a front waist region and a crotch region
connecting the back waist region and said front waist region, a
linear article back waist edge and a linear article front waist
edge, an inner surface and an outer surface opposite said inner
surface, said absorbent article comprising:
[a]n absorbent chassis defining a chassis back waist edge
and a chassis front waist edge opposite said chassis back waist
edge, a pair of chassis side edges extending in said longitudinal
direction, and a substantially rectangular chassis shape, said
absorbent chassis comprising:
[a] liquid impermeable outercover; and
[a]n absorbent body disposed on said outercover;
[a] back ear formed separately from and attached
proximate each of said chassis side edges in said back waist
region, each of said back ears comprising a back ear proximal
edge, a back ear distal edge, a back ear first connecting edge
and a back ear second connecting edge, wherein said back ear
first connecting edge and said back ear second connecting edge
connect said back ear proximal edge and said back ear distal
edge and wherein said back ear first connecting edges of each
of said back ears are substantially flush with said chassis back
waist edge; and
[a] fastening member disposed on said inner surface of
each of said pair of back ears.

Br. 7
Independent claim 12 is also directed to an absorbent article
including, inter alia, a linear article back waist edge. Br. 9.

Appeal 2009-014565
Application 11/262,008

3
SUMMARY OF DECISION
We AFFIRM-IN-PART.

OPINION
The Examiner determines and Appellants dispute that DeNight
anticipates independent claims 1 and 12 by disclosing an absorbent article
including, inter alia, a linear article back waist edge. Ans. 3-4 and Br. 4.
Appellants argue that DeNight’s Figure 2 does not disclose a diaper having a
linear article back waist edge because “the ‘rearward marginal edge’ 62
clearly curves downward as it extends toward both of the ‘female snaps’ 74
and 76, which are presented at an angle to the central area of the rearward
marginal edge 62.” Br. 4.
We are not persuaded by Appellants’ argument. Appellants’
Specification defines the term linear article back waist edge as including
“the chassis back waist edge 92 and the back ear first connecting edges 84 of
each of the back ears 134,” all of which edges extend substantially in the
same line. Spec. 24, para. [0072]. While a patent applicant is entitled to be
his or her own lexicographer of patent claim terms, the applicant must do so
by placing such definitions in the Specification with sufficient clarity to
provide a person of ordinary skill in the art with clear and precise notice of
the meaning that is to be construed. Appellants argue that the curved
rearward marginal edge 62 in DeNight’s Figure 2 cannot be considered to
meet the claim terminology of “linear article back waist edge.” However,
we find no disclosure in Appellants’ Specification that would have led a
person of ordinary skill in the art to interpret “linear” as used in the claim
terminology of “a linear article back waist edge” to be limited to a straight,
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Application 11/262,008

4
rather than a curved, line. Appellant’s Specification does not assign or
suggest a particular definition for the word “linear.” Therefore, in
determining the ordinary and customary meaning of the claim word “linear”
as viewed by a person of ordinary skill in the art, it is appropriate to consult
a general dictionary definition of the word “linear” for guidance. See
Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010); see
also In re Trans Texas Holdings Corp., 498 F.3d 1290, 1299 (Fed. Cir.
2007). The ordinary and customary meaning of the word “linear” is “of,
consisting of, or using lines” and the ordinary and customary meaning of the
word “line” is “a continuous extent of length, straight or curved, without
breadth or thickness.”1 Based upon the ordinary and customary meanings of
the words “linear” and “line,” a person of ordinary skill in the art would
understand the claim terminology of “linear article back waist edge” to mean
that the chassis back waist edge and the back ear first connecting edges of
each of the back ears are substantially in the same line, but would not limit
the line to being a straight line as lines can be curved and Appellants’
disclosure does not limit the edges to being substantially in the same straight
line. Accordingly, we sustain the Examiner’s rejection of independent
claims 1 and 12 under 35 U.S.C. § 102(b) as anticipated by DeNight, and
claims 2-10 fall with claim 1.
Turning to claim 11, which depends from claim 1, the claim calls for
each of the chassis front and back waist edges to define a width, and for the

1 Dictionary.com, “linear” and “line,” in Dictionary.com Unabridged,
Random House, Inc. accessed at http://dictionary.reference.com and last
viewed on Jan. 18, 2012.

Appeal 2009-014565
Application 11/262,008

5
chassis back waist edge width to be greater than the chassis front waist edge
width. Br. 8.
The Examiner finds that DeNight’s Figure 2 shows an absorbent
article having a chassis back waist edge width that is greater than a chassis
front waist edge width. Ans. 6. In response to Appellants’ arguments that
DeNight’s Figure 2 does not show a chassis back waist edge that is greater
than a chassis front waist edge, the Examiner points to DeNight’s column 6,
lines 15-23, for its description that “the rear portion of the diaper [is] flared
to provide a wider configuration which is not required by the front section of
the diaper,” and the Examiner asserts that this disclosure of DeNight
indicates “a chassis back waist edge width that may be considered greater
than the chassis front waist edge width.” Ans. 7.
Appellants contend that DeNight’s Figure 2 depicts a diaper system
10 having a forward marginal edge 60 which is “at best the same size, if not
larger, than the ‘rearward marginal edge’ 62.” Br. 5.
We agree with Appellants. Initially, we note that the Examiner’s
rejection of claim 11 (Ans. 6) and assertions in response to Appellants’
arguments (Ans. 7) do not set forth any reference numerals or other
description so that we may know exactly what structure of DeNight the
Examiner is considering to be the chassis front and back waist edges.
However, the portion of DeNight relied upon the Examiner, i.e., column 6,
lines 15-23, is discussing absorbent pad 14 and how in use the forward
section of the pad 14 remains folded in order to provide a high absorptive
capacity and the rear portion of the pad 14 is flared open to provide a wide
confining region for feces. Thus, it appears that the Examiner is considering
DeNight’s forward end margin 26 of the pad 14 (see Figure 1) to be the
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Application 11/262,008

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chassis front waist edge (not the forward marginal edge 60 of the pad
retaining garment 12 as Appellants suggest) and the rearward end margin 24
(see Figure 1) of the pad 14 to be the chassis back waist edge (not the
rearward marginal edge 62 of the pad retaining garment 12 as Appellants
suggest). While DeNight’s flared rearward end margin 24 of pad 14 as
depicted in Figure 2 does appear to have a greater width than the folded
forward end margin 26 of pad 14, a person of ordinary skill in the art would
find the Examiner’s interpretation of DeNight’s flared rearward end margin
24 of pad 14 as constituting the chassis back waist edge to be unreasonable
for the following reason. As claim 11 depends on claim 1 and includes all of
claim 1’s subject matter, if DeNight’s flared rearward end margin 24 of pad
14 were considered to be the chassis back waist edge as it appears that the
Examiner is suggesting, then the linear article back waist edge would have to
be defined by the flared rearward end margin 24 of pad 14 and the rearward
end edges of the unnumbered “ears” or structures on which the female snap
elements are located and these three edges would not all be substantially in
the same line as required by the definition of “linear article back waist edge”
set forth in Appellants’ Specification at paragraph [0072]. Rather, a person
of ordinary skill in the art would agree with Appellants’ interpretation that
DeNight’s forward and rearward marginal edges 60, 62 constitute the chassis
front and back waist edges because these edges are substantially in line with
the end edges of the unnumbered “ears” or structures on which the female
snap elements are located in order to define the linear article back waist
edge. Thus, the rearward marginal edge 62 is at best equal to, but not
greater than the forward marginal edge 60 and does not satisfy the language
of claim 11.
Appeal 2009-014565
Application 11/262,008

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In view of the foregoing, we do not sustain the Examiner’s rejection
of claim 11 under 35 U.S.C. § 102(b) as anticipated by DeNight.

DECISION
We affirm the Examiner’s rejection of claims 1-10 and 12.
We reverse the Examiner’s decision to reject claim 11.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED-IN-PART

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