PATENT OWNER
`
`PATENT OWNER
`EXHIBIT 2013
`
`EXHIBIT 201 3
`
`
`
`PATENT OWNER
`EXHIBIT 2013
`
`EXHIBIT 201 3
`
`
`
`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.
`
`10/737,101
`
`12/15/2003
`
`Lynn Brud
`
`20246
`
`5505
`
`02/14/2011
`7590
`23556
`KIMBERLY-CLARK WORLDWIDE, INC.
`Tara Pohlkotte
`2300 Winchester Rd.
`NEENAH, WI 54956
`
`EXAMINER
`
`ZALUKAEVA, TATYANA
`
`ART UNIT
`
`PAPER NUMBER
`
`3761
`
`MAIL DATE
`
`02/14/2011
`
`DELIVERY MODE
`
`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 BOARD OF PATENT APPEALS
`AND INTERFERENCES
`____________
`
`Ex parte LYNN BRUD, MICHAEL FAULKS, and
`EMILY TRAN
`____________
`
`Appeal 2009-011707
`Application 10/737,101
`Technology Center 3700
`____________
`
`
`
`Before WILLIAM F. PATE, III, MICHAEL W. O’NEILL, and
`FRED A. SILVERBERG, Administrative Patent Judges.
`
`O’NEILL, Administrative Patent Judge.
`
`
`DECISION ON APPEAL1
`
`
`
`
`1 The two-month time period for filing an appeal or commencing a civil
`action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
`as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
`(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
`mode) shown on the PTOL-90A cover letter attached to this decision.
`
`
`
`Appeal 2009-011707
`Application 10/737,101
`
`
`STATEMENT OF THE CASE
`Lynn Brud et al. (Appellants) appeal under 35 U.S.C. § 134 from the
`
`Examiner’s decision rejecting claims 1-4, 6-18, 21, and 43-45 under 35
`U.S.C. § 102(b) as anticipated by Rönnberg (WO 98/53785, pub. Dec. 3,
`1998), claim 5 under 35 U.S.C. § 103(a) as being unpatentable in view of
`Rönnberg and Walker (GB 2 208 263 A, pub. Mar. 22, 1989), and claims 12,
`13, 18-20, and 44-45 under 35 U.S.C. § 103(a) as being unpatentable in view
`of Rönnberg.2 Claims 22-42 have been withdrawn. We have jurisdiction
`under 35 U.S.C. § 6(b). We REVERSE.
`The Invention
`The claims on appeal relate to an absorbent garment.
`Claim 1, reproduced below, is illustrative of the subject matter on
`appeal.
`
`
`
` 1.
`
`An absorbent garment, comprising:
`a garment shell defining a longitudinal axis, a
`transverse axis, a first waist edge generally parallel to
`the transverse axis, a first waist region contiguous with
`the first waist edge, a second waist edge generally
`parallel to the transverse axis, and a second waist region
`contiguous with the second waist edge;
`a first inner attachment member disposed at the
`first waist region, and a second inner attachment
`member disposed at the second waist region, each
`attachment member having a length dimension
`generally parallel to the longitudinal axis; and
`
`
`2 The rejection of claim 4 under 35 U.S.C. § 112, second paragraph, is not
`before us for review pursuant Appellants’ statement acknowledging the
`improper antecedent basis for the term “article” and further stating that
`“there is not dispute to be resolved by the Board with respect to this claim”
`concerning this rejection. App. Br. 4.
`
`
`
`2
`
`
`
`Appeal 2009-011707
`Application 10/737,101
`
`
`an absorbent assembly adapted for refastenable
`attachment to the garment shell, the absorbent assembly
`having an inner surface adapted for contact with a
`wearer's body, an outer surface opposite the inner
`surface, a first end region in facing relationship with the
`first waist region of the garment shell, and a second end
`region in facing relationship with the second waist
`region of the garment shell,
`wherein the absorbent assembly comprises a first
`fastening component disposed in the first end region,
`the first fastening component having a length dimension
`generally parallel to the longitudinal axis, and a second
`fastening component disposed in the second end region,
`the second fastening component having a length
`dimension generally parallel to the longitudinal axis,
`wherein the first fastening component is adapted for
`refastenable engagement to the first inner attachment
`member, and the second fastening component is adapted
`for refastenable engagement to the second inner
`attachment member,
`wherein the length dimension of the first inner
`attachment member is greater than the length dimension
`of the first fastening component and the second
`attachment member.
`
`
`
`OPINION
`The Examiner’s findings and analysis are insufficient to support the
`
`finding that Rönnberg discloses that the length dimension of the first inner
`attachment member is greater than the length dimension of the second inner
`attachment member as called in claims 1, 43, and 44. The Examiner has
`arbitrarily selected in Rönnberg, two portions 8, 9 of material 3 in order to
`satisfy the aforementioned claim limitation. Essentially, the Examiner has
`found that in Rönnberg, one portion 9 compared to another portion 8, which
`are both part of one structure 3, discloses the claim limitation. Consistent
`
`
`
`3
`
`
`
`Appeal 2009-011707
`Application 10/737,101
`
`with the principle that all limitations in a claim must be considered to be
`meaningful, it is improper to rely on the same structure in the Rönnberg
`reference as being responsive to two different elements (first and second
`attachment members) in claims 1, 43, and 44. See, Lantech, Inc. v. Keip
`Machine Co., 32 F.3d 542 (Fed. Cir. 1994) (in infringement context, a single
`conveyor held to not meet claim element requiring at least two conveyors);
`In re Robertson, 169 F.3d 743 (Fed. Cir. 1999)(claim requiring three
`separate means not anticipated by structure containing two means where one
`of the two means was argued to meet two of the three claimed means).
`
`In view of the foregoing, we are constrained to reverse the Examiner’s
`rejections of claims 1-21 and 43-45.
`
`
`
`DECISION
`We reverse the Examiner’s decision to reject claims 1-4, 6-18, 21, and
`
`43-45 under 35 U.S.C. § 102(b) as anticipated by Rönnberg, claim 5 under
`35 U.S.C. § 103(a) as being unpatentable in view of Rönnberg and Walker,
`and claims 12, 13, 18-20, and 44-45 as being unpatentable in view of
`Rönnberg.
`
`
`REVERSED
`
`Klh
`
`
`
`KIMBERLY-CLARK WORLDWIDE, INC.
`TARA POHLKOTTE
`2300 WINCHESTER RD.
`NEENAH, WI 54956
`
`
`
`4
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