Ex Parte Dobrin

Patent Trial and Appeal Board

Mar 26, 2018

13184868 (P.T.A.B. Mar. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/184,868 07/18/2011
27752 7590 03/28/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
George Christopher Dobrin
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
11816 1265
EXAMINER
DITMER, KATHRYN ELIZABETH
ART UNIT PAPER NUMBER
3778
NOTIFICATION DATE DELIVERY MODE
03/28/2018 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
pair_pg@firsttofile.com
mayer.jk@pg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GEORGE CHRISTOPHER DOBRIN
Appeal2017-000914
Application 13/184, 868
Technology Center 3700
Before CHARLES N. GREENHUT, JEFFREY A. STEPHENS, and
BRENT M. DOUGAL, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant 1 seeks our review under 35 U.S.C. § 134(a) from the
Examiner's Final Office Action ("Final Act.") rejecting claims 1, 3, and 8-
18, which are all the claims pending in the application. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
1 The real party in interest is identified as The Procter & Gamble Co. App.
Br. 1.
Appeal2017-000914
Application 13/184,868
Claimed Subject Matter
Claim 1, the only independent claim, is reproduced below with
disputed limitations emphasized.
1. An absorbent article having a liquid pervious topsheet, a
backsheet and an absorbent core disposed between said topsheet
and said backsheet, a longitudinal axis and a transverse axis, said
absorbent article comprising:
at least one fastening member, said fastening member
having longitudinal and transverse axes, said fastening member
compnsmg:
a tape having a garment facing surface and a body
facing surface;
an actual fastener disposed on said tape, wherein
said actual fastener is adapted to engage a complementary
surface; and
a macro-mechanical fastener indicium that is visible
on or through said garment facing surface of said tape;
wherein said tape comprises a first longitudinal edge, a
second longitudinal edge, and a longitudinal axis; wherein a
portion of said tape is joined to said article and comprises said
first longitudinal edge of said tape and a portion of said tape is
outboard of said absorbent article and comprises said second
longitudinal edge of said tape;
wherein said actual fastener comprises an inner
longitudinal edge, an outer longitudinal edge, and a longitudinal
axis,
wherein said macro-mechanical fastener indicium
comprises a longitudinal axis;
wherein said actual fastener comprises a micro-
mechanical fastener comprising a base and a plurality of
engaging elements, wherein said base is joined to said body
facing surface of said tape such that said plurality of engaging
elements project away from said body facing surface of said tape
and said longitudinal axis of said actual fastener is disposed
between said longitudinal axis of said tape and said second
longitudinal edge of said tape; and
2
Appeal2017-000914
Application 13/184,868
wherein said macro-mechanical fastener indicium is
disposed on said fastening member such that: 1) said
longitudinal axis of said macro-mechanical fastener indicium is
located between said longitudinal axis of said tape and said
longitudinal axis of said actual fastener, 2) at least a portion of
an outer contour of said macro-mechanical fastener indicium
intersects said inner longitudinal edge of said actual fastener,
and 3) the entire macro-mechanical fastener indicium is located
between the longitudinal axis of said tape and said second
longitudinal edge of said tape.
Rejection
I. Claims 1, 3, and 8-18 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Nickel (US 2006/0247594 Al, published Nov. 2,
2006). Final Act. 3-8. 2
DISCUSSION
Appellant contends "the disclosed arrangement of the actual fastener
in combination with the macro-mechanical fastener indicium provides the
benefit of allowing a care giver to easily peel the tape and be less likely to
'miss' the corresponding fastening surface by using the macro-mechanical
fastener indicium." App. Br. 7. Appellant argues Nickel does not teach that
the macro-mechanical fastener indicium is disposed in the location recited in
claim 1, in particular
such that: 1) said longitudinal axis of said macro-mechanical
fastener indicium is located between said longitudinal axis of
said tape and said longitudinal axis of said actual fastener, 2) at
least a portion of an outer contour of said macro-mechanical
fastener indicium intersects said inner longitudinal edge of said
actual fastener, and 3) the entire macro-mechanical fastener
2 The Examiner clarifies in the Answer that Landsman (US Des. 325,256,
issued Apr. 7, 1992) was relied on as evidence only to support the rejection
of claims 16-18 as unpatentable over Nickel.
3
Appeal2017-000914
Application 13/184,868
indicimn is located between the longitudinal axis of said tape and
said second longitudinal edge of said tape.
See id.
Appellant's argument does not inform us of error in the rejection of
claim 1. The Examiner's rejection acknowledges that Nickel does not
explicitly disclose that a particular indicium is disposed on the fastening
member at the claimed location in relation to the axes and edges recited in
claim 1. See Final Act. 4--5. The Examiner finds the claimed indicium is
printed matter and considers whether any functional relationship between the
indicium and the tape is new and non-obvious. Id. at 5. The Examiner finds
"the function of the claimed tape(s) with indicium is to support a fastener
thereon, with the indicium on the tape( s) providing visual assistance for
securing the article, which is the same function and structural relationship
disclosed by Nickel (para [0003])." Id. "[T]hus," the Examiner concludes,
"shifting the printed matter to one side of [Nickel's disclosed] ear is not
considered a patentable distinction." Id.
The Examiner further supports the analysis regarding printed matter in
the Answer. Ans. 4--7. In the alternative, the Examiner also finds, in the
Final Action, and as further discussed in the Answer, that one of ordinary
skill in the art would have had reason to:
position a visible graphic on one side of an tape/ diaper ear such
that it is proximate and/or overlapping a non-visible fastener on
the other side of the tape/ear (e.g. positioned as instantly claimed)
in order to provide the visual assistance disclosed and taught by
Nickel, because it would have been obvious at the time of
invention that the instantly claimed positioning/sizing would act
to emphasize the location actual fastener (depending on user
perception) so that the user would be educated as to the general
position of the non-visible fastener with regards to the tape/ear
4
Appeal2017-000914
Application 13/184,868
to ensure that the fastener is placed in the proper spot on the
diaper for secure fastening.
Final Act. 5; see Ans. 7-8.
Having reviewed the Examiner's rejection, we agree with the
Examiner's findings and conclusions. Appellant does not address either of
the Examiner's independent bases for determining that claim 1 would have
been obvious. See App. Br. 5-7; Reply Br. 2. Appellant's argument
consists of describing the subject matter of claim 1 and stating that the
claimed position of the indicium is not disclosed in Nickel. See App. Br. 5-
7; Reply Br. 2. "[37 C.F.R. § 41.37(c)(l)(iv)] require[s] more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art." In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). As discussed,
Appellant's argument does not address the Examiner's explanation as to the
obviousness of the claimed subject matter and, thus, Appellant has not
identified error in the Examiner's rejection.
Accordingly, for the reasons discussed above and by the Examiner,
we sustain the rejection of claim 1 under 35 U.S.C. § 103(a) as unpatentable
over Nickel. For the same reasons, we sustain the rejection of dependent
claims 3 and 8-18, which are not argued separately.
DECISION
We affirm the Examiner's rejection of claims 1, 3, and 8-18.
5
Appeal2017-000914
Application 13/184,868
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)(l )(iv).
AFFIRMED
6