Appeal 2007-2825
Application 10/262,036
1 P&G argues that its own patents do not teach how lotion might be
2 applied in a beneficial manner to sanitary napkins. Appeal Brief 2. P&G
3 goes on to say that Roe is "directed to a baby diaper." Id.
4 It is true that the Roe claims are limited to a diaper. However, the
5 descriptive portion of Roe relates to absorbent articles, one of which is
6 explicitly described as being a sanitary napkin. Col. 4:16. Roe's broad
7 "pre-application" disclosure (or phrased differently—P&G's pre-litigation
8 posture) is difficult to reconcile with P&G's current narrow argument and
9 belies its attempt to limit Roe to diapers. Elder also contradicts the
10 argument made to us on appeal because it claims absorbent articles. Given
11 that Roe and Elder are pre-application P&G documents, we are inclined to
12 credit Roe and Elder vis-à-vis the argument of counsel presented on appeal.
13 Cf. Velander v. Garner, 348 F.3d 1359, 1370-71, 68 USPQ2d 1769, 1778
14 (Fed. Cir. 2003) (it is within the discretion of the trier of fact to give each
15 item of evidence such weight as it feels appropriate and in giving more
16 weight to prior publications than to subsequent conclusory statements by
17 experts, the Board acted well within that discretion).
18 It is also true that the discussion in Elder concerning stripes is
19 generally made in the context of diapers. Col. 27:48 through col. 29:64.
20 However, P&G acknowledges in the background of its invention that
21 disposable absorbent articles, including diapers and catamenial devices,
22 having lotioned topsheets are known. Specification 1:20-21. We entertain
23 no doubt that one skilled in the art would know that a lotion may be used on
24 a sanitary napkin and would have known how to use a lotion on the sanitary
25 napkin.
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