Ex Parte Dziezok et al

Patent Trial and Appeal Board

Dec 17, 2012

11329796 (P.T.A.B. Dec. 17, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte PETER DZIEZOK and RALF GEILICH
__________

Appeal 2012-002389
Application 11/329,796
Technology Center 3700
__________

Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
STEPHEN WALSH, Administrative Patent Judges.

WALSH, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims directed to an absorbent article. The Patent Examiner rejected the
claims for obviousness. We have jurisdiction under 35 U.S.C. § 6(b). We
reverse.
Appeal 2012-002389
Application 11/329,796

2
STATEMENT OF THE CASE
Claims 1-4 and 6-11 are on appeal. Claim 1 is representative and
reads as follows (emphasis added):
1. An absorbent article extending along a longitudinal axis and a
transverse axis, the absorbent article comprising:
a topsheet;
a backsheet; and
an absorbent core disposed between the topsheet and the backsheet,
the core defining a wearer facing side oriented towards a wearer when the
article is being worn and an opposed garment facing side, wherein the core
includes 1) a storage layer comprising a wearer facing side and an opposed
garment facing side, 2) a first core wrap sheet covering the wearer facing
side of the storage layer, and 3) a second core wrap sheet covering the
garment facing side of the storage layer, wherein the first core wrap sheet is
joined to the second core wrap sheet along at least one stripe of juncture;
wherein the stripe of juncture extends in at least one of the
longitudinal and transversal directions, such that a longitudinally extending
stripe of juncture comprises a microfiber adhesive, and a transversally
extending stripe of juncture comprises a microfiber adhesive.

The Examiner rejected the claims as follows:
claims 1-3, 6, 8, 10, and 11 under 35 U.S.C. § 103(a) as unpatentable
over Abuto
1
and Dunshee;
2

claims 4 and 7 under 35 U.S.C. § 103(a) as unpatentable over Abuto,
Dunshee, and Murphy;
3
and
claim 9 under 35 U.S.C. § 103(a) as unpatentable over Abuto,
Dunshee, and Thompson.
4

1
Frank P. Abuto et al., US 5,458,592, issued Oct. 17, 1995.
2
Wayne K. Dunshee, US 2002/0165477 A1, published Nov. 7, 2002.
3
Thomas S. Murphy et al., US 2005/0158539 A1, filed June 25, 2003.
4
Hugh Ansley Thompson, US 3,929,135, issued Dec. 30, 1975.
Appeal 2012-002389
Application 11/329,796

3

DISCUSSION
The Examiner concluded it would have been obvious to use
Dunshee’s microfiber adhesive for sealing Abuto’s two core wrap sheets to
each other. (Ans. 5-6.)
Appellants contend that the rejection is improper because the
references teach away from their combination. According to Appellants,
Abuto characterizes its core wrap as having a permanent closure, completely
sealed. (App. Br. 4-5.) In contrast, Dunshee’s microfiber adhesive is said to
be temporary, with removability being a key characteristic. (Id. at 5.)
The principle to be applied is that a prior art reference is said to teach
away from an Applicant’s invention “when a person of ordinary skill, upon
reading the reference, would be discouraged from following the path set out
in the reference, or would be led in a direction divergent from the path that
was taken by the applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir.
1994).
We have considered the Abuto and Dunshee references, and the
evidence and arguments in the Appeal Brief, Examiner’s Answer, and Reply
Brief. We agree with Appellants that a person of ordinary skill in the art
would have been discouraged from using Dunshee’s temporary microfiber
adhesive to achieve the permanent closure Abuto desired. Weighing that
fact with the other evidence, we conclude the rejection must be reversed.

SUMMARY
We reverse the rejection of claims 1-3, 6, 8, 10, and 11 under
35 U.S.C. § 103(a) as unpatentable over Abuto and Dunshee.
Appeal 2012-002389
Application 11/329,796

4
We reverse the rejection of claims 4 and 7 under 35 U.S.C. § 103(a)
as unpatentable over Abuto, Dunshee, and Murphy.
We reverse the rejection of claim 9 under 35 U.S.C. § 103(a) as
unpatentable over Abuto, Dunshee, and Thompson.

REVERSED

cdc