Ex Parte Harkness

Patent Trial and Appeal BoardNov 6, 2012

11445364 (P.T.A.B. Nov. 6, 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. 11/445,364 06/01/2006 Stephen Scott Harkness 64049710US01 8033 23556 7590 11/06/2012 KIMBERLY-CLARK WORLDWIDE, INC. Tara Pohlkotte 2300 Winchester Rd. NEENAH, WI 54956 EXAMINER HAND, MELANIE JO ART UNIT PAPER NUMBER 3778 MAIL DATE DELIVERY MODE 11/06/2012 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 PATENT TRIAL AND APPEAL BOARD __________ Ex parte STEPHEN SCOTT HARKNESS __________ Appeal 2011-013407 Application 11/445,364 Technology Center 3700 __________ Before ERIC GRIMES, LORA M. GREEN, and JEFFREY N. FREDMAN, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to absorbent articles, which the Examiner has rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. STATEMENT OF THE CASE The Specification discloses a “disposable absorbent article … that has an absorbent assembly that includes a non-elastic absorbent that is capable of being elongated and contracted in the transverse or cross-body direction” (Spec. 2:11-13). The Specification discloses that the absorbent can be Appeal 2011-013407 Application 11/445,364 2 configured as a series of alternating ridges and valleys that permit transverse elongating and contracting (id. at 17: 15 to 18:13). Claims 1-6 and 9-15 are on appeal. Claim 1 is representative and reads as follows: 1. A three-piece disposable absorbent article having a longitudinal central axis and a transverse central axis, comprising: a) a front panel capable of being stretched and retracted in multiple directions; b) a back panel capable of being stretched and retracted in multiple directions, said back panel being distinct and spaced apart from said front panel; and c) an absorbent assembly situated between said front and back panels and being attached to each by a first attachment member, said first attachment member being aligned along said longitudinal central axis, and said absorbent assembly including a non-elastic absorbent that is capable of being elongated and contracted in only one direction, that direction being aligned approximately parallel to said transverse central axis. Claim 10 is the only other independent claim and like claim 1, requires a non-elastic absorbent that “is capable of being elongated and contracted in only one direction … [that] is aligned approximately parallel to said transverse central axis” (Appeal Br. 9 (Claims Appendix)). The Examiner has rejected all of the claims on appeal under 35 U.S.C. § 103(a) as obvious in view of Van Gompel 1 and Lassen. 2 The Examiner finds that Van Gompel discloses a three-piece disposable absorbent article meeting the limitations of claim 1 except that it lacks an absorbent having the properties recited in claim 1 (Answer 4). The Examiner finds that “Lassen discloses an absorbent core 18 comprised of wood pulp that is by its 1 Van Gompel et al., US 2004/0122401 A1, published June 24, 2004. 2 Lassen et al., US 6,521,811 B1, issued Feb. 18, 2003. Appeal 2011-013407 Application 11/445,364 3 nature not elongatable or contractable in any direction inasmuch as such forces will result in tearing of the core 18 [and] thus it is a non-elastic absorbent” (id.). The Examiner finds that Lassen‟s absorbent core 18 has a structure that allows “the core to be contracted into a „W‟ shape … and returned back to its original shape (i.e. elongated) only in the transverse direction of the article” (id. at 5). The Examiner finds that “Lassen teaches that this deformation … facilitat[es] acquisition and distribution of fluid to prevent rewet” (id.). The Examiner concludes that it would have been obvious to modify Van Gompel‟s article “by replacing the absorbent assembly with the article of Lassen to provide a core that contracts upon application of compressive forces during wear to facilitate acquisition and distribution of fluids to prevent rewet” (id.). Appellant contends that Lassen does not disclose an absorbent core “capable of being elongated” in a transverse direction, as required by claim 1 (Appeal Br. 5). Appellant argues that the ability to recover from compressive forces “is not the same as „capable of being elongated‟” as required by claim 1 (Reply Br. 1). We agree with Appellant that the cited references would not have made obvious a “non-elastic absorbent that is capable of being elongated and contracted,” as recited in claim 1. The Examiner relies on Lassen as disclosing this limitation. Lassen discloses “absorbent articles having a central, longitudinal flexure axis which allows the absorbent article to preferentially bend in an upwardly convex configuration when subjected to Appeal 2011-013407 Application 11/445,364 4 lateral compressive forces” (Lassen, col. 1, ll. 17-20). Figure 1 of Lassen is shown below: Figure 1 shows “a partial cut-away perspective view of an absorbent article illustrating an embodiment of the absorbent core” (id. at col. 2, ll. 31-33). Figure 5 of Lassen is shown below: Figure 5 shows “a perspective view of an absorbent article showing generally a body-accommodating configuration, referred to herein as a „W‟ shape, the absorbent core can obtain when lateral compressional forces are exerted on the absorbent core” (id. at col. 2, ll. 45-49). We do not agree with the Examiner‟s conclusion that Lassen‟s non- elastic absorbent core, which can assume a “W” shape upon the application of compressive forces, meets the limitation of “a non-elastic absorbent that Appeal 2011-013407 Application 11/445,364 5 is capable of being elongated and contracted,” as recited in claim 1. “[T]he PTO applies to the verbiage of the proposed claims the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by ... the applicant‟s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Here, the Specification discloses that the “absorbent 54 is non-elastic but because of its unique configuration, it does have the ability to elongate and contract back towards its original dimension” (Spec. 9:21-22). The Specification states that “[b]y „elongate‟ it is meant that the absorbent 54 can be lengthened or extended in a particular direction. By „contract‟ it is meant that the absorbent 54 can be reduced in size or shortened in a particular direction after it has been elongated.” (Id. at 9:23-25.) Thus, the Specification makes clear that claim 1 requires a non-elastic absorbent that can elongate beyond its original dimensions and then contract back toward its original dimensions. Although the Examiner argues that Lassen‟s absorbent article will expand after being laterally compressed (Answer 9-10), she has not pointed to any disclosure in Lassen of a non-elastic absorbent that can elongate beyond its original dimensions and then contract back toward its original dimensions. While Lassen describes its absorbent core as contracting from its original dimensions and then resuming them, it does not describe the absorbent core as elongating beyond its original dimensions. Appeal 2011-013407 Application 11/445,364 6 SUMMARY Because both of the independent claims on appeal require a nonelastic absorbent core that is capable of being elongated, we reverse the rejection of independent claims 1 and 10, as well as dependent claims 2-9 and 11-15. REVERSED alw