SEITZ, Bret Darren. et al.

Patent Trials and Appeals Board

Jan 28, 2020

14809324 - (D) (P.T.A.B. Jan. 28, 2020)

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.
14/809,324 07/27/2015 Bret Darren SEITZ 13559 4469
27752 7590 01/28/2020
THE PROCTER & GAMBLE COMPANY
GLOBAL IP SERVICES
CENTRAL BUILDING, C9
ONE PROCTER AND GAMBLE PLAZA
CINCINNATI, OH 45202
EXAMINER
ANDERSON, CATHARINE L
ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
01/28/2020 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
mayer.jk@pg.com
pair_pg@firsttofile.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BRET DARREN SEITZ and
GARY DEAN LAVON

Appeal 2019-004456
Application 14/809,324
Technology Center 3700
____________

Before MICHAEL L. HOELTER, JAMES P. CALVE, and
MICHAEL L. WOODS, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3–8, 10–19, and 21. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as “The
Procter & Gamble Company of Cincinnati, Ohio.” Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The disclosed subject matter “is directed to disposable absorbent
articles and arrays of disposable absorbent articles which are designed to fit
different adult body sizes, shapes and types, and as such are sized to fit a
broad range of adult consumers.” Spec. 1:11–13. Apparatus claims 1, 9, 17,
and 30 are independent. Claim 1 is illustrative of the claims on appeal and is
reproduced below.
1. An absorbent article having a central chassis, the central
chassis comprising a topsheet, a backsheet and an absorbent core,
the absorbent article comprising:
a front waist region and a front waist edge;
a back waist region and a back waist edge;
a front belt disposed in the front waist region;
a back belt disposed in the back waist region;
wherein the front and back belts are joined at seams to
form a waist opening and leg openings;
wherein the front belt comprises a first film;
wherein the back belt comprises a second film;
a plurality of elastic strands disposed along a portion of the
leg openings;
wherein the article comprises a Product Length-to-hip
Silhouette less than about 0.94;
wherein the article comprises a Relaxed Product Length of
greater than about 258 mm; and
wherein the article comprises at least one of the following:
(a) Relaxed Product Waist Width less than about
304 mm;
(b) Relaxed Product Side Length less than about
202 mm;
(c) Relaxed Product Length less than about 316
mm; and
(d) Relaxed Product Hip Width less than about 373
mm;
wherein the Relaxed Product Length is a longitudinal
distance between a longitudinally distal most point in the crotch
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region and a longitudinally distal most point along the front waist
edge, wherein the article is relaxed.
EVIDENCE
Name Reference Date
Betts US 7,931,632 B2 Apr. 26, 2011
Takahashi et al.
(“Takahashi”)
US 2013/0226127 A1 Aug. 29, 2013
REJECTIONS2
Claims 1–8 are rejected under 35 U.S.C. § 103 as unpatentable over
Takahashi.
Claims 9–30 are rejected under 35 U.S.C. § 103 as unpatentable over
Takahashi and Betts.3
ANALYSIS
Appellant does not differentiate between the different rejections of
independent claims 1, 9, 17, and 30, and instead, argues these four claims
together. See Appeal Br. 2–3. Appellant also does not present any argument

2 Not addressed in the Examiner’s Answer are numerous provisional
rejections of claims 1–30 on the ground of nonstatutory double patenting.
See Final Act. 13–16; see also 37 C.F.R. § 41.39(a)(1). Although at least
Application Nos. 14/805,673, 14/805,601, and 14/699,145 have issued
(others are still pending and one has been abandoned), we do not address
these double patenting rejections in view of our affirmance of the rejections
of claim 1–30 as being obvious in view of Takahashi alone or combined
with Betts. See 37 C.F.R. § 41.50(a)(1). We leave it to the Examiner should
a need exist to further address these double patenting rejections.
3 The Examiner states that claim 30 is rejected as being unpatentable over
Takahashi and Betts (see Final Act. 12) separate from the similar rejection of
claims 9–29 (also in view of Takahashi and Betts) (see Final Act. 5). We
combine the two rejections.
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for any dependent claim. Hence, we select claim 1 for review, with the
remaining claims (i.e., claims 2–30) standing or falling with claim 1. See
37 C.F.R. § 41.37(c)(1)(iv).
Claim 1 includes the limitation “wherein the article comprises a
Product Length-to-hip Silhouette less than about 0.94.”4 Although relying
solely on Takahashi for disclosing the various limitations of claim 1, the
Examiner acknowledges that Takahashi does not disclose “the article having
a Product Length-to-Hip Silhouette less than 0.92.”5 Final Act. 3. However,
the Examiner states, “[c]hanges in size are an obvious modification in the art
of wearable articles” and as such, it would have been obvious “to provide
the article of Takahashi with a Product Length-to-Hip Silhouette less than
0.92.” Final Act. 4. The Examiner additionally states, “[t]he length and
width of the article is a result-effective variable since changes in the length
and width of the article result in a change in the size of the article.” Final
Act. 3–4. The Examiner states that it would have been obvious to provide a
ratio of “less than 0.92 since optimizing the ratio of the length to the width
of the article would have been an obvious modification to change the size of
the article.” Final Act. 4.
Appellant does not address the rejection directed to a “result-effective
variable” or “optimizing the ratio” employed by the Examiner above.
Instead, Appellant addresses the Examiner’s reliance on “[c]hanges in size
[being] an obvious modification in the art of wearable articles.” Appeal Br.
3. Appellant disagrees with this assessment stating “that the Product
Length-to-Hip Silhouettes . . . are not obvious modifications to absorbent

4 Claims 9, 17, and 30 recite a similar limitation, but with different numerals.
5 This numerical disparity is due to claim 9 reciting the lower value.
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articles.” Rather, “Applicants’ position is supported by several examples of
the adult incontinence pants on the market at the time of filing that fall
outside of Applicants' claimed range (see Fig. 9 and Table 1).”6 Appeal Br.
3. In view of Figure 9 and Table 1 “Appellants respectfully requests the
Board of Patent Appeals and Interferences to reverse said rejections and to
remand the application with instructions that the appealed claims be
allowed.” Appeal Br. 7.
The Examiner acknowledges that the data provided by Appellant
shows “several examples of adult incontinence pants on the market at the
time of filing that fall outside of Appellants' claimed range.” Ans. 4.
“However, this is not representative of all prior art products, and is limited to
only adult incontinence pants while the present claims are more broadly
drawn to absorbent articles, which can include other articles such as infant
diapers and training pants.” Ans. 4. Indeed, the data provided pertains to
adult absorbent articles (see Spec. Title), whereas claim 1 is not so limiting.
Further, Appellant has not filed a Reply Brief and thus does not rebut this
assertion by the Examiner that the presented data is not representative of
other absorbent articles. Hence, Appellant’s argument that the recited
Silhouette values “claimed by Applicants are not obvious modification to
absorbent articles” (Appeal Br. 3) is premised on incomplete data, and thus
is not persuasive of Examiner error.
Additionally, and consistent with the Examiner’s findings, is
Appellant’s own discussion of “U.S. 5,358,500 to LaVon et al.” Spec. 2:21.

6 Appellant’s Figure 9 is “a chart which shows examples of existing product
arrays” (Spec. 6:2) and Table 1 is entitled “Examples of Product Length-to-
Hip Silhouettes for Existing Product Arrays” (Spec. 13).
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Appellant states, “some consumers prefer a product style that provides for a
lower fit, such that the front waist edge is below the navel [and] [p]roducts
designed to fit below the navel and around the waist to the small of the back
also fall into the Low Motion area of the anatomy, as described in” LaVon.
Spec. 2:19–21. Appellant states that such products “provid[e] increased
product stability, comfort and gasketing” and that “[p]roducts designed to
deliver a lower fit relative to the navel will by necessity require a smaller
Product Length-to-Hip Silhouette.” Spec. 2:21–23. By such language and
in view of La Von, Appellant admits that, “by necessity [] a smaller” ratio is
a parameter for skilled persons to explore should one desire to improve
“product stability, comfort and gasketing.” This reason compliments the
Examiner’s stated reason, i.e., “[c]hanges in size are an obvious
modification in the art of wearable articles.” Final Act. 4. It also supports
the Examiner’s determination that the claimed Product Length-to-hip
Silhouette is recognized in the prior art as a result effective variable that may
be optimized by reducing the ratio. See In re Applied Materials, 692 F.3d
1289, 1295 (Fed. Cir. 2012) (“Where the general conditions of a claim are
disclosed in the prior art, it is not inventive to discover the optimum or
workable ranges by routine experimentation.” . . . This rule is limited to
cases in which the optimized variable is a ‘result-effective variable.’”); see
also Dow Chem. Co. v. Mee Indus., Inc., 341 F.3d 1370, 1377 (Fed. Cir.
2003) (holding that an admission that the prior art encompasses a claim
limitation supported an obviousness determination with other prior art); In re
Gardner, 449 F. App’x 914, 916 (Fed. Cir. 2011) (non-precedential)
(holding that the Board’s reliance on applicant’s disclosure that prior art
battery was a fast charge-discharge battery was proper citing Dow Chem.).
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In emphasizing the known pursuit of a smaller ratio, the Examiner
also states, “[t]he claimed Product Length-to-Hip Silhouette is shown to be
known in the prior art by references such as US 2007/0016158 to Endres et
al. (made of record but not relied upon in any rejection).” The Examiner
identifies data contained therein, stating that this data “results in a Product
Length-to-Hip Silhouette of 0.77.” Ans. 4 (referencing Endres “pages 6–7,
Table 1”). Hence, the Examiner concludes “the claimed range is not novel.”
Ans. 4–5. The Examiner reiterates, “modification of the size of an absorbent
article to achieve the claimed range would have been obvious to one of
ordinary skill in the art.” Ans. 5. Appellant does not address or otherwise
apprise us of error in the Examiner’s finding that the prior art teaches a value
(0.77) that is within the claimed range of “Product Length-to-hip Silhouette
less than about 0.94,” and this finding supports the Examiner’s
determination of obviousness by anticipating that claimed range. See In re
Wertheim, 541 F.2d 257, 267 (CCPA 1976) (“Of course, the disclosure in
the prior art of any value within a claimed range is an anticipation of the
claimed range.”); Titanium Metals Corp. of Am. V. Banner, 778 F.2d 775,
782 (Fed. Cir. 1985) (“It is an elementary principle of patent law that when,
as by a recitation of ranges or otherwise, a claim covers several
compositions, the claim is ‘anticipated’ if one of them is in the prior art.”).
Accordingly, and based on the record presented, we are not persuaded
the Examiner erred in rejecting claims 1–8 as being obvious over Takahashi,
nor of claims 9–30 as being obvious over Takahashi and Betts.
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–8 103 Takahashi 1–8
9–30 103 Takahashi, Betts 9–30
Overall
Outcome
1–30
No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED