Appeal 2006-3402
Application 10/397,949
USPQ 1, 5 (CCPA 1982). When making determinations of patentability, we
keep in mind that “the name of the game is the claim.” In re Hiniker Co.,
150 F.3d 1362, 1369, 47 USPQ2d 1523, 1529 (Fed. Cir. 1998).
Appellants (Appeal Br. 5) correctly point out that Knox-Sigh teaches
“a contour 40 of main pad 25 curves upwardly from tail portion 28 towards
the positioning point 26” (Knox-Sigh, col. 3, ll. 53-55) and reasonably
conclude from that teaching that main pad 25 of Knox-Sigh is not
“substantially planar.” As noted by the Examiner (Answer 4), however,
Appellants’ claims do not recite a substantially planar main body.
Appellant’s argument is thus directed to a limitation not appearing in the
claims and is not persuasive of patentability. We note that claim 1 recites a
“substantially planar tail,” but the Examiner finds that Knox-Sigh’s pad
“includes a substantially flexible planar tail 28” (Answer 3) and Appellants
do not contest that Knox-Sigh’s tail 28 is “substantially planar.”
Appellants (Appeal Br. 5-6) are also correct that Knox-Sigh’s tail 28,
which is adapted to extend “rearwardly into the area of the space 29 between
the buttocks 30 of the wearer” (Knox-Sigh, col. 3, ll. 7-8) is formed of
absorbent material (Knox-Sigh, col. 2, l. 67), albeit of material that is not as
absorbent as the primary absorbency area of the main portion 25 of the pad
in the neighborhood of the positioning point 26 (Knox-Sigh, col. 4, ll. 57-
63). The claims, however, do not exclude the presence of absorbent material
in the region of the tail. The limitation in claim 1 of an “absorbent core
system being adapted to not significantly extend beyond the anterior portion
of the perineum of the wearer in use” is met by the “primary absorbency
area in the neighborhood of the positioning point” formed of a first material
of relatively great absorbency (Knox-Sigh, col. 4. ll. 58-60).
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