Ex Parte Wilkes et al

Patent Trial and Appeal BoardMay 16, 2014

11799381 (P.T.A.B. May. 16, 2014)

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. 11/799,381 04/30/2007 Todd Wilkes 64350485US02 5776 23556 7590 05/19/2014 KIMBERLY-CLARK WORLDWIDE, INC. Tammi Langin 2300 Winchester Rd. NEENAH, WI 54956 EXAMINER ANDERSON, CATHARINE L ART UNIT PAPER NUMBER 3778 MAIL DATE DELIVERY MODE 05/19/2014 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 TODD WILKES, JOSEPH MLINAR, and JON P. ROOYAKKERS __________ Appeal 2012-003281 Application 11/799,381 Technology Center 3700 __________ Before DONALD E. ADAMS, LORA M. GREEN, and ZHENYU YANG, Administrative Patent Judges. PER CURIAM. DECISION ON APPEAL This is a decision on appeal1 under 35 U.S.C. § 134 from the Examiner’s rejection of claims 1, 2, 4-14, 16, and 17.2 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 The Real Party in Interest is Kimberly-Clark Worldwide, Inc. (App. Br. 1.) Appeal 2012-003281 Application 11/799,381 2 STATEMENT OF THE CASE The claims relate to disposable absorbent articles having a graphic disposed on the waistband of the article. Claim 1 is representative of the claims on appeal, and reads as follows: 1. A disposable absorbent article comprising: a front portion; a back portion attached to the front portion at first and second seams; a waistband comprising two nonwoven webs with a plurality of elastic strands disposed between the two nonwoven webs, wherein the waistband and the plurality of elastic strands extend from the first seam to the second seam along the front portion, and from the second seam to the first seam along the back portion; and a graphic comprising a colored hot-melt adhesive disposed on the disposable absorbent article on the front portion or on the back portion, wherein the graphic is adapted to convey a signal enabling a user to distinguish between the back portion and front portion of the disposable absorbent article, and wherein the graphic is disposed on the article at a location on the waistband. Issue The Examiner has rejected claims 1, 2, 4-14, 16, and 17 under 35 U.S.C. § 103(a) as obvious in view of Klemp,3 Olson,4 and Toyoshima5 (Ans. 4-7). Claims 2, 4-14, 16, and 17 have not been argued separately from claim 1, and, therefore, stand or fall with that claim. 37 C.F.R. § 41.37(c)(1)(ii). The issue presented is: Has the Examiner established that the preponderance of the evidence supports the conclusion that the cited 3 Klemp, US 6,702,795 B2, patented Mar. 9, 2004. 4 Olson et al., US 6,297,424 B1, patented Oct. 2, 2001. 5 Toyoshima et al., US 7,288,079 B2, patented Oct. 30, 2007. Appeal 2012-003281 Application 11/799,381 3 references would have made obvious an absorbent article comprising “a waistband comprising two nonwoven webs with a plurality of elastic strands disposed between the two nonwoven webs,” wherein the waistband and the elastic strands extend between two side seams of the absorbent article, and wherein a graphic is disposed on the waistband, as required by claim 1? Findings of Fact FF1. The Examiner finds that “Klemp discloses a disposable absorbent article, as shown in figure 1, comprising a front portion 20 and a back portion 22 that attach at first and second seams 34. The article further comprises a waistband, as shown in figure 2” (Ans. 4). FF2. The Examiner finds that the Klemp “waistband is formed from the topsheet 16 and backsheet 18, with an elastic strand 44 disposed between them, as shown in figure 2. Both the topsheet 16 and backsheet 18 comprise nonwoven webs” (id. (citing Klemp, col. 6, ll. 25-27; col. 7, ll. 22-23)). FF3. The Examiner finds that the Klemp “waistband extends from the first seam to the second seam in the front and back portions, as shown in figure 1” (id. at 4-5). App App dispo the b Figu (Kle mem mad inter at co eal 2012-0 lication 1 FF4. Th sed on the ack of the FF5. Fig re 1 shows mp, col. 4 FF6. Kl ber 46 (e. e a part of, FF7. Kl posed betw l. 9, ll. 8-1 FF8. Fig 03281 1/799,381 e Examine waistban article” (i ure 1 of K “a perspe , ll. 49-55) emp disclo g., an elast one or mo emp disclo een the to 1). ures 6 and r finds tha d, as show d. at 5). lemp is sh ctive view . ses that g ic member re of the e ses that “t psheet 16 7 of Klem 4 t Klemp d n in figure own belo of a dispo arment 10 ) substant ar regions he stretch and backs p are sho iscloses a s 6 and 7, w: sable abso is “equipp ially incor 26” (id. a able memb heet 18 in wn below “graphic 6 which . . rbent garm ed with a porated w t col. 9, ll. er 46 is pr the ear reg : 6 . . . . indicates ent” stretchable ith, and 6-9). eferably ions” (id. Appeal 2012-003281 Application 11/799,381 5 Figures 6 and 7 show the ear region of the absorbent article, which comprises the word Back as a graphic, in the extended and contracted configurations, respectively (id. at col. 4, ll. 61-67). FF9. Klemp discloses that “[i]n the extended configuration, the backsheet 18 displays a smooth, continuous outer surface 92 that is particularly conducive to having decorative or instructional printing 66 displayed thereon” (id. at col. 10, ll. 21-32). FF10. Klemp discloses that the garment may also be “equipped with an elastic waist band 44 that is inserted between the topsheet 16 and backsheet 18 and adjacent the central body regions 28 of each of the front waist region 20 and back waist region 22” (id. at col. 8, ll. 60-64). FF11. Klemp discloses that “the waist band 44 may be omitted or may be extended substantially continuously along the top end of the front waist region 20 and back waist region 22, thereby encircling or partially encircling the waist of the user when the garment 10 is worn” (id. at col. 8, l. 65- col. 9, l. 2). FF12. Klemp discloses that, when the absorbent article is worn, “the front and back waist regions 20, 22 together display a continuous, smooth outer surface substantially all around the waist of the user except where it is interrupted by the side seams 34” (id. at col. 10, ll. 24-28). FF13. The Examiner finds that Klemp does not disclose that “the graphic comprises a colored hot-melt adhesive” (Ans. 5). FF14. The Examiner finds that “Olson teaches printing a graphic on the backsheet of an absorbent article . . . using a colored hot-melt adhesive” (id. (citing Olson, Figure 1; col. 2, l. 44)). Appeal 2012-003281 Application 11/799,381 6 FF15. The Examiner concludes that it would “have been obvious to one of ordinary skill in the art . . . to provide the article of Klemp with a graphic printed with a colored hot-melt adhesive, as taught by Olson, to provide a suitable ink for use with an absorbent article” (id.). FF16. The Examiner finds that the combination of Klemp and Olson disclose “the claimed invention with the exception of the waistband comprising a plurality of elastic strands between the two nonwoven webs” (id.). FF17. The Examiner finds that “Klemp discloses a stretchable member 46 disposed between two nonwoven webs 16 and 18, as shown in figure 5. The stretchable member 46 comprises an elastic material” (id.). FF18. The Examiner finds that Toyoshima discloses “a stretchable member comprising elastic material 91 in the waist region of an absorbent article, as shown in figure 1” (id.). FF19. The Examiner finds that “Toyoshima further teaches the functional equivalence of a plurality of elastic strands . . . as the stretchable member” (id. at 5-6 (citing Toyoshima, col. 7, ll. 59-67)). Appeal 2012-003281 Application 11/799,381 7 FF20. Figure 1 of Toyoshima is shown below: Figure 1 of Toyoshima discloses “a plan of a disposable diaper according to an embodiment of the present invention with its elastic members being in their substantially stretched flat state” (Toyoshima, col. 2, 53-55). FF21. Toyoshima discloses that [F]irst section B includes a waist portion D, where an elastic member 81 is provided to form an extensible waist part . . . [and] section C also has an elastic member 81 to form an extensible waist part 8 in its waist portion D. Each waist portion D constitutes the longitudinal end of the diaper 1 and is applied to the waist of a wearer. (Id. at col. 4, ll. 17-23.) FF22. Toyoshima discloses that “elastic members 61, 71, 81, and 91 for forming the standing gathers 6, the leg gathers 7, the extensible waist parts 8, and the extensive side parts 9, respectively, are known and conventional. Useful forms of these elastic members include strings, bands of some width, and films” (id. at col. 7, ll. 59-63). Appeal 2012-003281 Application 11/799,381 8 FF23. The Examiner concludes that it would [H]ave been obvious to one of ordinary skill in the art . . . to provide the stretchable member of Klemp with a plurality of elastic strands in the waistband, since Toyoshima teaches the functional equivalence of a wide elastic band and a plurality of elastic strands for use in the waistband of an absorbent article (id. at 6). FF24. The Specification discloses that “whether the graphic is attached to the front portion or back portion, it can be located virtually anywhere on said portion. One exemplary version of the invention is a disposable absorbent article having an attached or integral waistband, with the graphic disposed on or near said waistband” (Spec. 3:3-6). Principles of Law During prosecution before the Office, claims are to be given their broadest reasonable interpretation consistent with the Specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech. Ctr, 367 F.3d 1359, 1364 (Fed. Cir. 2004). “An essential purpose of patent examination is to fashion claims that are precise, clear, correct, and unambiguous. Only in this way can uncertainties of claim scope be removed, as much as possible, during the administrative process.” In re Zletz, 893 F.2d 319, 322 (Fed. Cir. 1989). Moreover, it is during prosecution that applicants have “the opportunity to amend the claims to obtain more precise claim coverage.” Am. Acad., 367 F.3d at 1364. Appeal 2012-003281 Application 11/799,381 9 Analysis Appellants argue that Klemp “does not disclose an article having a single elastic strand, much less a plurality of elastic strands” (App. Br. 5). Appellants further argue that Klemp “uses an open cell urethane foam in its waist band 44” (id.). Appellants argue that “the elastic strands in Toyoshima are located only in the extensible side parts 9,” and not in the waistband (id. at 6). That argument is not persuasive. Klemp discloses an elastic waistband (FFs 10 and 11). As recognized by the Examiner (Ans. 8), Toyoshima discloses that useful forms of elastic members for absorbent articles include elastic strings and elastic bands (FF 23). Thus, it would have been obvious for one of skill in the art to include elastic strings as the elastic members in the elastic waistband of Klemp. Furthermore, Toyoshima also disclose[s] an elastic waistband that may comprise elastic strings as the elastic element (FFs 21 and 22). Appellants argue that Klemp’s “waistband 44 does not extend from a first to a second seam” (App. Br. 5). Appellants argue further that Toyoshima does not “disclose a waistband and a plurality of elastic strands extending from the first seam to the second seam along a front portion, and from the second seam to the first seam along a back portion” (id. at 6). That argument is not persuasive. Klemp discloses that the waistband may extend continuously along the top end of the front waist region 20 and back waist region and encircle the waist of the user (FF10). Thus, Klemp discloses a waistband that runs from seam to seam. As discussed above, it would have been obvious to modify the elastic waist of Klemp to have the Appeal 2012-003281 Application 11/799,381 10 elastic strands of Toyoshima, which would provide a waistband and a plurality of elastic strands extending “from the first seam to the second seam along the front portion, and from the second seam to the first seam along the back portion,” as required by claim 1. Appellants argue that Klemp “does not disclose a graphic disposed on a waistband of the disposable absorbent article” (App. Br. 5). According to Appellants, Klemp’s “decorative or instructional printing 66 is positioned on the stretchable member 46, which is located on the stretchable ear portion 26 . . . [such that the] printing is located immediately adjacent a side seam 34” (id. at 6). Appellants argue that the fact that Klemp’s “Figs. 6 and 7 are illustrated with the word ‘back’ is curious in that the printing is not on the back of the article, but is instead on the stretchable side of the article” (id.). This argument is not persuasive. The Specification does not define the term “back portion,” but provides that the graphic may be attached anywhere on the back portion, including the waistband (FF 24). Thus, when the claim term “back portion” is given the broadest reasonable interpretation that is consistent with the Specification, the claim term would include a portion of the waistband that is offset from the center back, as disclosed in Klemp. Appellants argue that Toyoshima “does not describe first and second seams . . . [and] does not disclose a graphic disposed on the waistband of the disposable absorbent article” (App. Br. 6). That argument is not persuasive because, as discussed above, Klemp discloses first and second seams and a graphic disclosed on the waistband. Appeal 2012-003281 Application 11/799,381 11 Conclusion of Law The preponderance of the evidence supports the Examiner’s conclusion that the cited references would have made obvious the absorbent article of claim 1 comprising “a waistband comprising two nonwoven webs with a plurality of elastic strands disposed between the two nonwoven webs,” wherein the waistband and the elastic strands extend between two side seams of the absorbent article, and wherein a graphic is disposed on the waistband. SUMMARY We affirm the rejection of claims 1, 2, 4-14, 16, and 17 under 35 U.S.C. § 103(a). TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED cdc