Ex Parte 6849067 et al

Patent Trial and Appeal Board

Nov 5, 2015

95001228 (P.T.A.B. Nov. 5, 2015)

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.
95/001,228 09/25/2009 6849067 34297-0029 5550
23556 7590 11/05/2015
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
WEHNER, CARY ELLEN
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
11/05/2015 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 PATENT TRIAL AND APPEAL BOARD
____________________

FIRST QUALITY BABY PRODUCTS, LLC.
Requester, Respondent

v.

KIMBERLY-CLARK WORLDWIDE, INC.
1

Patent Owner, Appellant
____________________

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Patent US 6,849,067 B2
2

Technology Center 3900
____________________

Before STEVEN D.A. McCARTHY, DANIEL S. SONG and
BRETT C. MARTIN, Administrative Patent Judges.
Opinion for the Board filed by Administrative Judge SONG.

Opinion Concurring filed by Administrative Patent Judge McCARTHY.
SONG, Administrative Patent Judge
DECISION ON APPEAL

1
Kimberly-Clark Worldwide, Inc. is the Patent Owner and the real party in
interest (Appeal Brief of Patent Owner (hereinafter "App. Br.") 1).
2
Patent US 6,849,067 B2 (hereinafter "the ’067 patent") issued February 1,
2005 to Fletcher et al.
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STATEMENT OF THE CASE
Claims 1–87 of the ’067 patent are subject to reexamination and stand
rejected (Right of Appeal Notice
3
(hereinafter "RAN") PTOL-2066). Claims
11–87 were added during the reexamination. The Patent Owner appeals
under 35 U.S.C. §§ 134(b) and 315 from the Examiner's rejections with
respect to claims 1–7 and 11–87 (Rebuttal Brief (hereinafter "Reb. Br.") 1).
The appeal of claims 8–10 has been withdrawn in view of the invalidation of
those claims in the litigation noted below. We have jurisdiction under 35
U.S.C. §§ 134(b) and 315.
The ’067 patent was the subject of litigation in Case No. 09-CV-916
in which the district court invalidated claims 8–10 of the ’067 patent (Reb.
Br. 1). Kimberly-Clark Worldwide, Inc. v. First Quality Baby Products,
LLC, 900 F.Supp.2d 903 (E.D.Wis. 2012). That case was appealed to the
Federal Circuit, which affirmed the district court. Kimberly-Clark
Worldwide, Inc. v. First Quality Baby Products, LLC, 579 Fed. Appx. 996
(Fed. Cir. 2014).
An oral hearing with the legal representatives of the involved parties
was held before the Patent Trial and Appeal Board on August 20, 2015, a
transcript of which was entered into the electronic record on September 21,
2015.
We AFFIRM.

3
The Examiner's Answer incorporates the RAN by reference. Hence we cite
to the RAN herein.
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The ’067 patent is directed to a disposable absorbent article having
refastenable side seams (Title; Abstract). Figures 2 and 3 of the ’067 patent
are reproduced below.

Figure 2 reproduced above shows a plan view of the disposable
absorbent article in an unfastened, starched, and laid flat condition, and
showing the surfaces of the article that faces away from the wearer (col. 8, ll.
34–37). Figure 3 reproduced above illustrates a plan view similar to Figure
2, but showing the surface of the article that faces the wearer when the
article is worn, and with portions cut away to show the underlying features
(col. 8, ll. 38–41).
Independent claim 1 reads as follows (Claims App., reference
numerals of Figures 2 and 3 added in brackets for clarity):
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1. An absorbent article [e.g., training pant 20], comprising:
an absorbent chassis [32] defining a longitudinal axis
[48], a transverse axis [49], front and back waist edges [38, 39]
parallel to the transverse axis, opposite side edges [36]
extending between the front and back waist edges, a front waist
region [22] contiguous with the front waist edge [38], a back
waist region [24] contiguous with the back waist edge [39], and
a crotch region [26] which extends between and interconnects
the front and back waist regions, the front waist region defining
a pair of transversely opposed front side panels [34] and a front
center panel [35] positioned between and interconnecting the
front side panels, the back waist region defining a pair of
transversely opposed back side panels [134] and a back center
panel [135] positioned between and interconnecting the back
side panels, at least one pair of side panels being elastomeric in
a direction generally parallel to the transverse axis, the
absorbent chassis comprising a bodyside liner [42], an outer
cover [40] bonded to the bodyside liner, and an absorbent
assembly [44] disposed between the bodyside liner and the
outer cover; and
a fastening system [80] for releasably securing the
absorbent article in a pant-like configuration, the fastening
system comprising first and second fastening components [82,
83] disposed on the back side panels and adapted to releasably
engage first and second mating fastening components [84, 85]
disposed on the front side panels;
wherein a transverse distance between the first and
second fastening components is substantially equal to a
transverse distance between the first and second mating
fastening components,
the absorbent article further comprising leg elastic
members [58] longitudinally aligned along each side edge [36]
in the crotch region, the leg elastic members having front
terminal points [63] located adjacent longitudinally innermost
parts of the front side panels and back terminal points [65]
located adjacent longitudinally innermost parts of the back side
panels.

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The Examiner rejects the claims as follows:
4

5. Claims 1 and 3–6 under 35 U.S.C. § 103(a) as obvious over
Kling
5
in view of Van Gompel
6
(RAN 17–20).
6. Claims 1 and 3–5 under 35 U.S.C. § 103(a) as obvious over
Kling in view of Lancaster
7
(RAN 20–23).
7. Claim 2 under 35 U.S.C. § 102(b) as anticipated by Kling
(RAN 23).
8. Claims 1 and 3–6 under 35 U.S.C. § 103(a) as obvious over
Kling in view of APA
8
(RAN 24–26).

4
For clarity, we utilize the same numbering as the Examiner in listing the
various rejections. We also note that the appeal of claims 8–10 has been
withdrawn in view of their invalidation (Reb. Br. 1), and thus, these claims
remain rejected. Correspondingly, we omit claims 8–10 from the various
rejections listed. Furthermore, Grounds of Rejection 1–4, 11, 15, 19, 23,
27–30, 43, 44, 47 and 55 were not adopted or withdrawn by the Examiner
(RAN 13–17, 29, 33, 37, 40, 43–44, 59–60, 64–65 and 73), and thus, are not
listed.
5
WO 97/46197, Dec. 11, 1997.
6
U.S. Patent No. 4,940,464, July 10, 1990.
7
U.S. Patent No. 5,269,776, Dec. 14, 1993.
8
Hereinafter "APA." The Examiner considers the subject matter of Van
Gompel to be admitted prior art (see RAN 24, stating "APA (Van Gompel)";
see also RAN 25; App. Br. 13 regarding Ground of Rejection 8). The
Examiner's position appears to be based on the Specification of the ’067
patent, which states:
A detailed description of the construction and design of one
form of training pant can be found in U.S. Pat. No. 4,940,464
issued Jul. 10, 1990 to Van Gompel et al., which is incorporated
herein by reference. The Van Gompel et al. patent describes
various materials of which the training pant can be made, and a
method of constructing a training pant.
(Col. 5, ll. 55–60).
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9. Claims 11 and 15–17 under 35 U.S.C. § 102(b) as anticipated
by Schmitz
9
(RAN 27–28).
10. Claims 12–14, 19 and 20 under 35 U.S.C. § 103(a) as obvious
over Schmitz in view of Admitted Prior Art (RAN 28–29).
12. Claims 21 and 22 under 35 U.S.C. § 103(a) as obvious over
Schmitz in view of Roessler
10
(RAN 29–30).
13. Claim 23 under 35 U.S.C. § 103(a) as obvious over Schmitz in
view of Van Gompel (RAN 30–31).
14. Claims 24–29, 31 and 32 under 35 U.S.C. § 103(a) as obvious
over Schmitz in view of APA (RAN 31–32).
16. Claims 33 and 34 under 35 U.S.C. § 103(a) as obvious over
Schmitz in view of APA and Roessler (RAN 33–34).
17. Claim 35 under 35 U.S.C. § 103(a) as obvious over Schmitz in
view of APA and Van Gompel (RAN 34–35).
18. Claims 36–39, 41 and 42 under 35 U.S.C. § 103(a) as obvious
over Schmitz in view of APA (RAN 35–37).
20. Claims 43 and 44 under 35 U.S.C. § 103(a) as obvious over
Schmitz in view of APA and Roessler (RAN 37–38).
21. Claim 45 under 35 U.S.C. § 103(a) as obvious over Schmitz in
view of APA and Van Gompel (RAN 38–39).
22. Claims 46–48 under 35 U.S.C. § 102(b) as anticipated by
Schmitz (RAN 39–40).

9
U.S. Patent No. 5,779,831, July 14, 1998.
10
U.S. Patent No. 5,176,670, Jan. 5, 1993.
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24. Claims 50 and 51 under 35 U.S.C. § 103(a) as obvious over
Schmitz in view of APA (RAN 41).
25. Claims 52 and 53 under 35 U.S.C. § 103(a) as obvious over
Schmitz in view of Roessler (RAN 41–42).
26. Claim 54 under 35 U.S.C. § 103(a) as obvious over Schmitz in
view of Van Gompel (RAN 42–43).
31. Claims 61 and 65 under 35 U.S.C. § 103(a) as obvious over
Schmitz in view of APA (RAN 45–46).
32. Claims 62, 63, 66 and 67 under 35 U.S.C. § 103(a) as obvious
over Schmitz in view of APA and Roessler (RAN 46).
33. Claims 64 and 68 under 35 U.S.C. § 103(a) as obvious over
Schmitz in view of APA and Van Gompel (RAN 47).
34. Claims 69 and 70 under 35 U.S.C. § 103(a) as obvious over
Schmitz in view of Roessler (RAN 47–49).
35. Claim 71 under 35 U.S.C. § 103(a) as obvious over Schmitz in
view of Van Gompel (RAN 49–50).
36. Claim 72 under 35 U.S.C. § 102(b) as anticipated by Schmitz
(RAN 50–51).
37. Claims 73–75 and 86 under 35 U.S.C. § 102(b) as anticipated
by Schmitz (RAN 51–52).
38. Claim 78–80 under 35 U.S.C. § 103(a) as obvious over Schmitz
in view of Van Gompel (RAN 52–54).
39. Claim 76 under 35 U.S.C. § 102(b) as anticipated by Schmitz
(RAN 54–55).
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40. Claims 81 and 82 under 35 U.S.C. § 103(a) as obvious over
Schmitz in view of APA (RAN 55–56).
41. Claim 77 under 35 U.S.C. § 103(a) as obvious over Schmitz in
view of Kling (RAN 56–57).
42. Claim 77 under 35 U.S.C. § 103(a) as obvious over Schmitz in
view of Johansson
11
(RAN 57–59).
45. Claim 87 under 35 U.S.C. § 103(a) as obvious over Schmitz in
view of Kaczmarzyk
12
(RAN 60–61).
46. Claims 15, 16, 18, 30, 40, 46–60 and 76 under 35 U.S.C.
§ 314(a) as improperly enlarging the scope of the claims (RAN 61–
63).
48. Claim 7 under 35 U.S.C. § 103(a) as obvious over Kling in
view of Lancaster and Redfern
13
(RAN 66).
49. Claims 18, 30, 40, 49, 55 and 83–85 under 35 U.S.C. § 103(a)
as obvious over Schmitz in view of Hisada
14
(RAN 66–67).
50. Claims 56, 57 and 60 under 35 U.S.C. § 103(a) as obvious over
Schmitz in view of Hisada and Van Gompel (RAN 68).
51. Claims 58 and 59 under 35 U.S.C. § 103(a) as obvious over
Schmitz in view of Hisada and Roessler (RAN 69–70).
52. Claims 1 and 2 under 35 U.S.C. § 102(b) as anticipated by
Schmitz (RAN 70–71).

11
GB 2 303 045 A, February 12, 1997.
12
U.S. Patent No. Des. 379,226, May 13, 1997.
13
U.S. Patent No. 4,402,690, Sept. 6, 1983.
14
U.S. Patent No. 5,851,205, Dec. 22, 1998.
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53. Claims 3–6 under 35 U.S.C. § 103(a) as obvious over Schmitz
in view of Van Gompel (RAN 71–73).
54. Claim 7 under 35 U.S.C. § 103(a) as obvious over Schmitz in
view of Van Gompel and Hisada (RAN 73).

ISSUES
The following issues have been raised in the present appeal.
1. Whether the Examiner erred in concluding that various claims
are obvious over the combination of Kling, and Van Gompel or APA.
2. Whether the Examiner erred in finding that Schmitz anticipates
various claims.
3. Whether the Examiner erred in concluding that various claims
are obvious over the combination of Schmitz and secondary
references and/or APA.

ANALYSIS
The Patent Owner disagrees with the Examiner's findings and
conclusions in its appeal for the reasons set forth in its briefs. We address
the various arguments of the Patent Owner infra in an order that differs
slightly from the order presented. Only those arguments actually made by
the Patent Owner have been considered and any arguments not made are
deemed to be waived. See 37 C.F.R. § 41.67(c)(1)(vii).

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Rejection 5
Claims 1 and 3–6 stand rejected as obvious over the combination of
Kling and Van Gompel (RAN 17–20). The Examiner finds that Kling
discloses an alternative wherein the elastic pants layer 12 is omitted, and
concludes that in such an alternative, it would have been obvious to provide
an elastomeric leg member as taught by Van Gompel in order to contain the
waste (id. at 17–18). In this regard, the Examiner notes a portion of Kling
that specifically states:
[a]nother alternative is for the outer material [9] and the barrier
layer [11] to be given an extension and shape such that their
edges will also form the end edges and side edges 5–8 of the
diaper, in a well-known manner. In this case, the corner
portions of the diaper will include parts of the outer material
and the barrier layer between which elastic devices may have
been mounted. The elastic pants layer can be omitted in this
case.
(Kling, pg. 14, l. 32–pg. 15, l. 2; RAN 18).
Further observing that Kling "distinguishes between the elastomeric
corner portions and the material that extends from the sides of the absorbent
body," the Examiner concludes that:
[a]ccordingly, the front and back corner portions are
longitudinally spaced from one another and it would have been
obvious to provide an elastomeric leg member between the side
panels (corner portions) so each extends from adjacent a front
side panel to adjacent a back side panel in order to contain
waste, as taught by Van Gompel.
(RAN 18, citing Kling, pg. 15, ll. 3–7).
As to claim 1, the Patent Owner argues that in Kling, elastic pants
layer 12 includes an elastic net 19 that provides elasticity to the entire
diaper, and that the applied references fail to disclose leg elastic members
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having terminal points located adjacent the longitudinally innermost parts of
the elastic side panels (App. Br. 5). Specifically, the Patent Owner argues
that providing the leg elastic of Van Gompel "provide[s] no benefit
whatsoever" because of the existing elastic in the crotch area, and instead,
would "most likely result in overly strong elastic forces through the crotch
region of the diaper." (Reb. Br. 10; App. Br. 8). The Patent Owner also
argues that because the elastics of Kling continuously extend along the entire
side edge on each side of the diaper including crotch 4, Kling does not teach
leg elastic members with terminal points adjacent longitudinally innermost
parts of side panels (App. Br. 6). Based thereon, the Patent Owner argues
that in the alternative embodiment of Kling wherein extensions are provided,
the elastic of the extensions would be provided to be along the crotch in a
continuous manner (id. at 6–7).
The Patent Owner's arguments are unpersuasive in that they overlook
the disclosure in Kling that the outer material and the barrier layer can be
shaped to provide an extension "such that their edges will also form the end
edges and side edges 5–8 of the diaper, in a well-known manner," and
further discloses elastic devices in the extensions (Kling, pg. 14, l. 32–pg.
15, l. 2). Kling further specifically discloses that in such a configuration, the
elastic pants layer is omitted (id.). Kling's disclosure is not limited to just
the preferred embodiments illustrated in its figures, but rather, includes the
embodiments described in its text.
As to the recited configuration of the leg elastic members, as the
Examiner finds, Van Gompel discloses such a configuration of the leg
elastic members (Van Gompel, Fig. 5; col. 4, ll. 12–17). We agree with the
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Examiner's findings and conclusion that provision of leg elastic in the
manner disclosed in Van Gompel would have been obvious in order to
contain the waste (RAN 18) in the alternative embodiment disclosed in
Kling wherein the elastic pants layer is omitted and the elastic extensions are
provided.
The Patent Owner's argument that elastic of the extensions would be
provided to be along the crotch in a continuous manner (App. Br. 6–7) is
unpersuasive because it does not take into account the ordinary creativity of
those in the art. It would have been obvious to one of ordinary skill to have
provided separate leg elastics that terminate adjacent longitudinally
innermost parts of side panels in the embodiment of Kling wherein the
elastic pants layer is omitted, especially in view of the explicit disclosure in
Van Gompel of such a configuration. KSR Int'l Co. v. Teleflex Inc., 550 U.S.
398, 421 (2007) ("[a] person of ordinary skill is also a person of ordinary
creativity, not an automaton."). The claimed invention with the recited leg
elastic configuration is merely a predictable variation that would have been
obvious to a person of ordinary skill. Id. at 417.
As to claim 3, the Patent Owner similarly argues that extensions
provided in Kling would extend to the crotch, and that in order to satisfy
claim 3, "the elastic device disclosed adjacent the side edges of the Kling
diaper would have to be omitted," which would render the diaper unsuitable
for its intended purpose (App. Br. 9). This argument is unpersuasive for
substantially the same reasons discussed above.
Therefore, we are not persuaded that the Examiner erred in rejecting
claims 1 and 3 as unpatentable over Kling and Van Gompel, or in rejecting
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claims 4–6, which were not separately argued. Accordingly, we affirm
Rejection 5.

Rejection 8
Claims 1 and 3–6 also stand rejected as obvious over the combination
of Kling and APA (RAN 24–26). The Patent Owner relies on the same
arguments discussed above with respect to Rejection 5 (App. Br. 13). Thus,
Rejection 8 is also affirmed.

Rejection 52
Claims 1 and 2 stand rejected as anticipated by Schmitz (RAN 70–
71). We initially observe that claim 1 remains rejected based on our
affirmance of Rejections 5 and 8 as discussed supra. Thus, we only reach
this rejection with respect to claim 2, this rejection being moot with respect
to claim 1.
As to claim 2, the Patent Owner refers to its arguments "regarding the
transverse distance between the first and second mating fastening
components" submitted with respect to claim 1 (App. Br. 16). In this
respect, the Patent Owner argues that Schmitz fails to disclose that the
transverse distance between fastening components is "substantially equal to"
the transverse distance between mating fastening components (id. at 13), is
silent as to the relative spacing between the sealing areas (id. 14), and
drawings, such as Figure 3, are not to scale (Reb. Br. 1). The Patent Owner
further argues that in Schmitz, there is no disclosure that such fasteners are
"a) of equal size to each other, b) are at the same transverse location relative
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to each other[,] or c) cover the entire sealing area 43, 45, 47, 49." (Id.; see
also id. at 2).
The Patent Owner's arguments are not persuasive. The limitation at
issue states that "a transverse distance between the first and second fastening
components is substantially equal to a transverse distance between the first
and second mating fastening components . . . ." (App. Br. 26, Claims App.,
emphasis added). Hence, absolute equidistant positioning of the fastening
components is not required by the claim. In addition, whether Schmitz
discloses or fails to disclose fastener components of equal size that cover the
entire sealing areas is not dispositive considering claim 2 does not recite
limitations corresponding thereto. See In re Self, 671 F.2d 1344, 1348
(CCPA 1982) (features not appearing in the claims cannot be relied upon for
patentability).
We are aware that extraction of quantitative values based on
measurements of a drawing are of little value. In re Wright, 569 F.2d 1124,
1127 (CCPA 1977). However, drawings can be relied on for what they
reasonably disclose and suggest to one of ordinary skill in the art. See In re
Mraz, 455 F.2d 1069, 1072 (CCPA 1972); In re Aslanian, 590 F.2d 911, 914
(CCPA 1979). In this regard, in considering the scope and content of the
prior art, "it is proper to take into account not only specific teachings of the
reference but also the inferences which one skilled in the art would
reasonably be expected to draw therefrom." In re Preda, 401 F.2d 825, 826
(CCPA 1968).
With the above considerations in mind, in the present rejection, we
note that the Examiner is not extracting measurement values from drawings,
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but instead is relying on the disclosure for positioning of the disclosed
Velcro
®
fastening components on sealing areas 43, 45, 47, and 49 of the side
panels as shown in Figure 3 of Schmitz (RAN 70–71). Indeed, Figure 3 of
Schmitz reasonably discloses to one of ordinary skill in the art, the
"substantially equal" transverse distance between the fastening components
as recited by claim 2. Mraz, 455 F.2d at 1072. In addition, such
substantially equal distance is immediately inferred from the generally
symmetrical construction of the device in Schmitz and the absence of any
disclosure therein Schmitz to the contrary. Preda, 401 F.2d at 826.
Therefore, we affirm the Examiner's rejection of claim 2, and decline
to reach this rejection with respect to claim 1.

Rejections 9, 22, 36, 37, and 39
Under Rejections 9, 22, 36, 37, and 39, claims 11, 15–17, 46–48, 72,
73–76 and 86 also stand rejected as anticipated by Schmitz. The Patent
Owner relies on its arguments proffered with respect to claim 8 in Rejection
52 for patentability of these claims (App. Br. 17). Thus, while the appeal of
claim 8 has been withdrawn, we refer to, and address Patent Owner's
arguments in pages 16 and 17 of the Appeal Brief relative to rejection of
claim 8 as to these rejections.
The dispute with respect to these rejections pertains to whether
Schmitz discloses the limitations requiring "a pair of elastomeric,
nonwoven" side panels, as well as requiring such side panels on both the
front and back panels of the absorbent article. The Examiner finds that
Schmitz discloses each of these limitations and finds, inter alia, that:
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Schmitz states: "[t]he web from which the undergarment is
formed may be of elastic or elasticated material, such that the
web is elastically extensible." (Column 3, lines 8–10). This
indicates that the entire garment may be made of an elastomeric
material, including the side panels. Further, Patent Owner
argues that Schmitz does not disclose that the material is non-
woven. Schmitz states: '[t]he web from which the absorbent
article is formed comprises a flexible material, which may be a
woven fabric, a nonwoven material, a thermoplastic film or any
combination or laminate thereof." (Column 2, lines 57–60)
(emphasis added). Figure 3 shows that the side panels are part
of the web and therefore elastomeric and non-woven.
(RAN 102).

The Patent Owner argues that while Schmitz discloses that the front
panel can include a pair of stretchable panels 135, 137 in the embodiment
shown in Figure 20, it is silent as to the stretchable panels 135, 137 being
"nonwoven" or "elastomeric." (App. Br. 16; see also Reb. Br. 5).
According to the Patent Owner, being stretchable "means that the panels can
be extended when a force is applied, but may not retract," while elastomeric
requires the capability to extend and retract (App. Br. 16; see also Reb. Br.
5). The Patent Owner also notes that Schmitz uses both terms elastomeric
and stretchable (Reb. Br. 5; Schmitz col. 11, ll. 28–33). The Patent Owner
further argues that the above-noted passage in Schmitz regarding an elastic
web is not relevant to the embodiment shown in Fig. 20 (App. Br. 16), and
argues that with respect to its disclosure of an elastic or elasticated material,
"[t]here is no disclosure at this point of the Schmitz patent as to which if any
of the actually disclosed embodiment this applies to." (Reb. Br. 6).
We are not persuaded that the Examiner erred. As the Examiner
finds, Schmitz clearly discloses that "[t]he web from which the
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undergarment is formed may be of elastic or elasticated material, such that
the web is elastically extensible," or formed of a non-elastic material
(Schmitz, col. 3, ll. 8–12). Schmitz also discloses that the web material
"may be a woven fabric, a nonwoven material, a thermoplastic film or any
combination or laminate thereof." (Id. at col. 2, ll. 57–60). Schmitz is silent
as to whether the embodiment disclosed in Figure 3 is made of an elastic
and/or a nonwoven material.
In the above regard, Figure 3 is described as showing a top plan view
of "a two-dimensional pre-form [or blanks] for forming an absorbent article
having side seams." (Schmitz, col. 4, ll. 56–57). Relatedly, Figures 24 and
25 are described as showing a top plan view of "a web from which the pre-
forms are cut." (Id. at col. 5, ll. 23–25). Indeed, Schmitz discloses that the
web and the pre-form/blanks made therefrom include the backsheet and
topsheet, which, in the embodiment of Figure 3, form the side panels with
sealing areas (Schmitz, col. 6, ll. 45–51, 63–65; Fig. 3; see also Rebuttal
Brief 4 (the Patent Owner conceding "Figure 3 of Schmitz illustrates an
embodiment . . . in which the side panels appear to be formed from the same
material as the backsheet 23 and/or the topsheet 21 of the article.")).
Thus, Schmitz discloses a limited number of possible choices with
respect to the elastic characteristics (elastic or non-elastic), and also
discloses a limited number of possible choices with respect to the material
from which the web, and correspondingly, the pre-form/blank of Figure 3
may be made (woven fabric, nonwoven material, thermoplastic film, or
combination or laminate thereof), the side panels being formed of the web.
Correspondingly, a person of ordinary skill in the art would "at once
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envisage" the claimed arrangement wherein the side panels are elastic and
made of a nonwoven material. See Kennametal, Inc. v. Ingersoll Cutting
Tool Co., 780 F.3d 1376, 1381 (Fed. Cir. 2015) (citing In re Petering, 301
F.2d 676, 681 (CCPA 1962))("a reference can anticipate a claim even if it
'd[oes] not expressly spell out' all the limitations arranged or combined as in
the claim, if a person of skill in the art, reading the reference, would 'at once
envisage' the claimed arrangement or combination."); see also Wm. Wrigley
Jr. Co. v. Cadbury Adams USA LLC, 683 F.3d 1356, 1361 (Fed. Cir. 2012)
(citing Perricone v. Medicis Pharm. Corp., 432 F.3d 1368, 1377 (Fed. Cir.
2005)("The question for purposes of anticipation is therefore whether the
number of categories and components in [the prior art reference] was so
large that the combination [] would not be immediately apparent to one of
ordinary skill in the art.").
The Patent Owner's arguments with respect to the pair of stretchable
panels 135, 137 in the embodiment shown in Figure 20 of Schmitz, and its
arguments based on the alleged distinction between "elastic" and
"stretchable" does not adequately address Schmitz's disclosure of an elastic
web and how that disclosure would be understood by a person of ordinary
skill in the art in reviewing Schmitz as discussed above. As the Examiner
states, "[e]ven if this were true, Schmitz teaches (in the passages cited
above) an embodiment having side panels made of a non-woven, elastomeric
material." (RAN 102).
Even with respect to the embodiment shown in Figure 20 of Schmitz,
we also agree with the Examiner's finding that Schmitz satisfies the elastic
limitation in its disclosure that "[i]n the embodiment of FIG. 20, the blank
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17 comprises a thermoplastic film backsheet 23 having panels 135, 137 of
stretchable material attached there-to." (RAN 27; see also RAN 70;
Schmitz, col. 11, ll. 28–30, emphasis omitted). We conclude that Schmitz's
subsequent disclosure of stretchable panels would have been understood by
those of ordinary skill in the art as being within the context of Schmitz's
earlier, broader disclosure that the web may be elastic so as to be elastically
extensible (Schmitz, col. 3, ll. 8–10). In this regard, we observe that the
definition of "elastic" is "3: capable of being easily stretched or expanded
and resuming former shape." Merriam-Webster's Collegiate Dictionary, 11
th

Ed. (2007). Thus, this definition encompasses "stretchable," even in the
definitions proffered by the Patent Owner, even if the converse may not be
true as asserted by the Patent Owner (Reb. Br. 5).
The Patent Owner also argues that Schmitz is silent as to whether a
pair of stretchable panels illustrated in the embodiment shown in Figure 20
is provided on the opposite rear panels, and that the side panels on the
opposite rear panels can be inelastic or non-stretchable (id. at 16; Reb. Br.
3–4). The Patent Owner asserts that a person of ordinary skill could view
Schmitz in such a manner because elastomeric panels are more difficult to
manipulate (App. Br. 16), and the Examiner's rejection is "incorrectly
grounded in inherency." (Reb. Br. 3).
However, we are not persuaded that the Examiner erred in finding that
this limitation is also anticipated by Schmitz. In this regard, as already
discussed supra, the Examiner's rejections also rely on the general
disclosures of Schmitz and the absorbent article shown in Figure 3. Nothing
in Schmitz indicates that the side panels of the rear panel would be
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constructed in any different manner than those of the front panel. To the
contrary, the generally symmetrical construction of the absorbent article
clearly shown in Figures 3, 6, 24, and 25 of Schmitz
15
(see also RAN 101)
would lead a person of ordinary skill in the art to reasonably infer the
claimed construction wherein the rear panels include a pair of stretchable
side panels in the same manner as the front panels. In re Preda, 401 F.2d
825, 826. In addition, the Patent Owner's assertion that the Examiner is
relying on inherency is incorrect. The Examiner does not use the term
"inherent" or any variations thereof.
As to the embodiment of Figure 20 of Schmitz, we also generally
agree with the Examiner that:
[o]ne of ordinary skill in the art would know that the other pair
of side panels is constructed in the same manner as side panels
135, 137, in view of the construction of the side panels shown
in Fig. 3 and the fact that the absorbent articles are both
transversely and longitudinally symmetrical, for manufacturing
reasons.
(RAN 100; see also Schmitz, Figures 6, 24, and 25).

Finally, the Patent Owner argues that Schmitz does not disclose a
disposable absorbent article having a pair of refastenable seams, but instead

15
We note that Figure 3 is described as showing a top plan view of "a two-
dimensional pre-form for forming an absorbent article having side seams."
(Schmitz, col. 4, ll. 56–57). Figures 24 and 25 are described as showing a
top plan view of "a web from which the pre-forms are cut." (Id. at col. 5, ll.
23–25).
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discloses such a disposable article having preformed side seams, or a
reusable diaper holder with refastenable seams (App. Br. 17). However, this
argument is without merit. Schmitz specifically discloses a "disposable
absorbent article" wherein the overlapping side seams are connected by
"Velcro® hook-type and loop-type materials" that are "re-fastenable seams
[that] can be undone by the user without ripping the article and can be
reclosed for further use." (Schmitz, col. 2, ll. 40–49).
Therefore, in view of the above, we find the arguments of the Patent
Owner regarding Rejections 9, 22, 36, 37, and 39 unpersuasive, and affirm
the Examiner's rejection of claims 11, 15–17, 46–48, 72, 73–76, and 86 that
are subject of these rejections.

Rejections 10, 14, 18, 24, 31, and 40
Under these rejections, claims 12–14, 19, 20, 24–29, 31, 32, 36–39,
41, 42, 50, 51, 61, 65, 81, and 82 stand rejected as obviousness over the
combination of Schmitz and APA. The Patent Owner relies on the same
arguments already addressed, and on the dependency of the rejected claims
for patentability (App. Br. 17–18). However, the Patent Owner's arguments
are unpersuasive for the reasons discussed supra, and the parent claims from
which these claims depend are unpatentable. Therefore, we affirm
Rejections 10, 14, 18, 24, 31, and 40.

Rejection 12
Claims 21 and 22 stand rejected as obvious over the combination of
Schmitz and Roessler (RAN 29–30), these claims requiring "the transverse
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spacing between the transversely opposed side edges" of one of the front or
back waist region to be greater than the other. The Examiner finds that in
Schmitz, the transverse spacing of the side edges of the back and front waist
region is the same, but finds that Roessler discloses an absorbent article
having the claimed configuration (RAN 30). Thus, the Examiner concludes:
[i]t would have been obvious to one of ordinary skill in the art
to form the refastenable pant of Schmitz such that the transverse
spacing of the side edges in the front waist region is less than
the transverse spacing of the side edges in the back waist
region, as taught by Roessler, so that the leg openings are more
forwardly facing to conform to the legs better and give more
room in the rear.
(RAN 30).
The Patent Owner argues that altering the article of Schmitz so that
spacing between front side edges is bigger than the rear side edges would
render Schmitz unsatisfactory for its intended purpose and change the
principle of operation because the seam would be at the front instead of at
the side (App. Br. 18).
The Patent Owner's argument is unpersuasive. As the Requester
points out, Schmitz does not limit the seams to a particular location (Resp.
Br. 15). We agree with the Examiner that such a modification would have
been obvious, and further agree with the Requester that the suggested
modification would "merely shift the seams slightly towards the front or
back sides of the garment." (Resp. Br. 15). The rejection is not based on
moving the seam fully to the front of the article, but rather providing spacing
of the side edges so that seam is still on the side, although not centrally
located on the side. Correspondingly, we affirm Rejection 12.

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Rejections 25 and 34
Under Rejections 25 and 34, claims 52, 53, 69, and 70 stand rejected
as obvious over the combination of Schmitz and Roessler. The Patent
Owner asserts patentability of the rejected claims based on their dependency
and also relies on the same arguments submitted with respect to Rejection 12
as well as arguments directed to claim 8 with respect to Rejection 52 (App.
Br. 18–19). However, the Patent Owner's arguments are unpersuasive for
the reasons discussed, and the parent claims from which these claims depend
are unpatentable.
As to claim 69, the Patent Owner further argues that it is the
Examiner's position that "the side panels not shown in Figure 20 of Schmitz
must be identical to the illustrated side panels." (Resp. Br. 7). That is not
correct. As discussed supra, Schmitz is silent as to the non-illustrated side
panels, but a person of ordinary skill in the art would understand it as
disclosing the same in configuration. Mere silence is not the same as
Schmitz disclosing that the side panels "must be identical." No such
requirement is set forth in Schmitz or asserted by the Examiner. In addition,
the rejection at hand is that of obviousness in combination with Roessler that
clearly discloses the configuration recited. We see no technical reason why
such a combination would not be made or is beyond the skill of those in the
art. Thus, agree with the Examiner that:
[i]t would have been obvious to one of ordinary skill in the art
to form the refastenable pant of Schmitz such that the transverse
spacing of the side edges in the front waist region is less than
the transverse spacing of the side edges in the back waist
region, as taught by Roessler, so that the leg openings are more
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forwardly facing to conform to the legs better and give more
room in the rear.
(RAN 48–49).
Therefore, we affirm Rejections 25 and 34.

Rejections 13, 26, 35, 38 and 53
Under Rejections 13, 26, 35, 38, and 53, claims 3–6, 23, 54, 71, and
78–80 stand rejected as obvious over the combination of Schmitz and Van
Gompel. The Patent Owner asserts patentability of the rejected claims
relying on arguments that have been found unpersuasive for reasons
discussed supra (App. Br. 19–20). Therefore, we affirm Rejections 13, 26,
35, 38, and 53.

Rejections 16, 20 and 32
Under Rejections 16, 20, and 32, claims 33, 34, 43, 44, 62, 63, 66, and
67 stand rejected as obvious over the combination of Schmitz, APA and
Roessler. The Patent Owner relies on the same arguments already addressed
and dependency of the rejected claims for patentability (App. Br. 20).
However, the Patent Owner's arguments are unpersuasive for the reasons
discussed supra, and the parent claims from which these claims depend are
unpatentable. Therefore, we affirm Rejections 16, 20 and 32.

Rejections 17, 21, 33, 41, 42, 45, 49, 50, 54
Under these rejections, claims 7, 18, 30, 35, 40, 45, 49, 55, 56, 57, 60,
64, 68, 77, 83–85, and 87 stand rejected as being obvious over Schmitz in
combination with another reference(s) and/or APA. The Patent Owner relies
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on the dependency of the rejected claims for patentability (App. Br. 20–21).
However, the parent claims from which these claims depend are also
unpatentable. Therefore, we affirm Rejections 17, 21, 33, 41, 42, 45, 49, 50,
and 54.

Rejection 51
Under Rejection 51, claims 58 and 59 stand rejected as unpatentable
over the combination of Schmitz, Hisada, and Roessler. The Patent Owner
asserts patentability of the rejected claims based on their dependency, and
also relies on the same arguments submitted with respect to Rejection 12
(App. Br. 21). However, the Patent Owner's arguments are unpersuasive for
the reasons discussed supra, and the parent claims from which these claims
depend are also unpatentable. Therefore, we affirm Rejection 51.

Rejections 6 and 48
Claims 1 and 3–6 stand rejected as unpatentable over Kling in
combination one or more other prior art references (RAN 20–23, 66).
However, we have affirmed the Examiner's rejection of these claims under
Rejections 5 and 8 discussed supra. Correspondingly, Rejections 6 and 48
are moot and we decline to reach the same.

Rejection 7
Claim 2 stands rejected as anticipated by Kling (RAN 23). However,
we have affirmed the Examiner's rejection of claim 2 under Rejection 52
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discussed supra. Correspondingly, Rejection 7 is moot and we decline to
reach the same.

Rejection 46
Claims 15, 16, 18, 30, 40, 46–60, and 76 stand rejected under 35
U.S.C. § 314(a) as improperly enlarging the scope of the claims (RAN 61–
63). However, we have affirmed the Examiner's prior art rejection of each
of these claims as discussed supra. Correspondingly, this rejection is moot
and we decline to reach the same.

ORDERS
1. The Examiner's rejection of claims 1–7 and 11–87 is AFFIRMED.
2. Rejections 7 and 46 are moot.

Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956. In the event neither party
files a request for rehearing within the time provided in 37 C.F.R. § 41.79,
and this decision becomes final and appealable under 37 C.F.R. § 41.81, a
party seeking judicial review must timely serve notice on the Director of the
United States Patent and Trademark Office. See 37 C.F.R. §§ 90.1 and
1.983.

AFFIRMED

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

FIRST QUALITY BABY PRODUCTS, LLC.
Requester, Respondent

v.

KIMBERLY-CLARK WORLDWIDE, INC.
Patent Owner, Appellant
____________________

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____________________

Before STEVEN D.A. McCARTHY, DANIEL S. SONG and
BRETT C. MARTIN, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge, concurring.

I write separately to address Rejections 9, 22, 36, 37 and 39. In these
rejections, the Examiner finds that Schmitz anticipates claims 11, 15–17,
46–48, 72–76 and 86. Each of these claims recites, expressly or by
dependency, a disposable absorbent article including “a pair of elastomeric,
nonwoven front side panels extending from the waist opening to each leg
opening” and “a pair of elastomeric, nonwoven back side panels extending
from the waist opening to each leg opening.” The Examiner finds that

Schmitz describes this limitation as well as the other limitations of the claim.
(See RAN 70–71). The Patent Owner disagrees. (See App. Br. 16–18; Reb.
Br. 2–7).
“A single prior art reference that discloses, either expressly or
inherently, each limitation of a claim invalidates that claim by anticipation.”
Perricone v. Medicis Pharma. Corp., 432 F.3d 1368, 1375 (Fed. Cir.
2005)(italics added for emphasis). A limitation is inherent in a prior art
disclosure only if the limitation necessarily is present in the structure or
method described. See Schering Corp. v. Geneva Pharmas., Inc., 339 F.3d
1373, 1377 (Fed. Cir. 2003). A feature is not inherent in a prior art
disclosure merely because one of ordinary skill in the art would have had
reason to include the feature. “Obviousness is not inherent anticipation.”
Trintec Indus., Inc. v. Top-U.S.A. Corp., 295 F.3d 1292, 1296 (Fed. Cir.
2002).
The Examiner finds that:
Schmitz states: “[t]he web from which the
undergarment is formed may be of elastic or
elasticated material, such that the web is elastically
extensible.” (Column 3, lines 8–10). This
indicates that the entire garment may be made of
an elastomeric material, including the side panels.
Further, Patent Owner argues that Schmitz does
not disclose that the material is non-woven.
Schmitz states: “[t]he web from which the
absorbent article is formed comprises a flexible
material, which may be a woven fabric, a non-
woven material, a thermoplastic film or any
combination or laminate thereof.” (Column 2,
lines 57–60) (emphasis added). Figure 3 shows
that the side panels are part of the web and
therefore elastomeric and non-woven.

(RAN 102). The Requester in its Respondent Brief echoes these findings.
(See Resp. Br. 13–14).
The Patent Owner does not identify any formal definition of the term
“side panel” in the ’067 patent. Neither does the Patent Owner identify any
express disclaimer of scope which might bear on the meaning of the term.
Nevertheless, the written description in the ’067 provides some guidance in
this particular case. In describing a training pant 20, the ’067 patent explains
that the “composite structure 33 and side panels 34 and 134 may be
integrally formed or comprise two or more separate elements.” (’067 patent,
col. 9, ll. 18–20). Hence, a “side panel,” as that term is used in the ’067
patent, may be an integral part of the undergarment blank. It follows that the
lateral, outer portions of the front and back waist sections 39, 39', 41, 41' as
depicted in Figure 3 of Schmitz are side panels.
Schmitz teaches that the web from which the undergarment is formed
may be of an elastic or elasticized material. (Schmitz, col. 3, ll. 8–10). This
description necessarily implies that, in one embodiment, the undergarment
blank as a whole will be of an elastomeric material. The Patent Owner’s
response to the Examiner’s citation of this passage of Schmitz, as set out on
page 16 of the Appeal Brief and pages 3–5 of the Rebuttal Brief, is not
persuasive, since the Patent Owner addresses only the embodiment depicted
in Figure 20 of Schmitz. Schmitz also teaches that the material of the web
may be chosen from a small list of material types including non-woven
material. (Schmitz, col. 2, ll. 57–60; see also id., col. 12, ll. 62–66 and col.
13, ll. 29–34). This implies that, in one embodiment, the elastomeric
material will be non-woven. Since the side panels depicted in Figure 3 are
integral with the remainder of the blank (see also Schmitz, col. 14, ll. 14–
19), they necessarily are of the same material. Hence, Schmitz inherently

describes an absorbent article, depicted in Figure 3, including “a pair of
elastomeric, nonwoven front side panels extending from the waist opening to
each leg opening” and “a pair of elastomeric, nonwoven back side panels
extending from the waist opening to each leg opening.”
On this basis, I agree with my colleagues that Rejections 9, 22, 36, 37
and 39 should be affirmed. My finding that Schmitz anticipates claims 11,
15–17, 46–48, 72–76 and 86 does not rely on Figure 20 of Schmitz or on the
accompanying text.

Third Party Requester:
Brian A. Comack
AMSTER, ROTHSTEIN & EBENSTEIN LLP
90 Park Avenue
New York, NY 10016

Patent Owner:
Richard L. Bridge
ARMSTRONG TEASDALE LLP
7700 Forsyth Blvd., Suite 1800
St. Louis, Missouri 63105