Wednesday, November 07, 2012

Procter & Gamble strung out by Board on --“a colored or printed patterned withdrawal member.” --

In Ex parte BURGDORF , Procter & Gamble lost by attacking references individually:

We have considered the Appellants’ arguments for this ground of rejection and do not find them persuasive. The Appellants argue, inter alia, that neither Taylor nor Bernard discloses every aspect of the claimed invention. More specifically, Taylor does not disclose using different colors to distinguish the withdrawal string from the secondary absorbent member (Br. 3) and Bernard does not disclose “a secondary absorbent member” or even a “need for a secondary absorbent member” (Br. 4). Since the Examiner’s reasoning does not rely on Taylor disclosing different colors or Bernard disclosing a secondary member, the Appellants’ contentions are not persuasive. In other words, one cannot show nonobviousness by attacking references individually where the rejections are based on a combination of references. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 426 (CCPA 1981).

The claim in question was

A tampon comprising:
a primary absorbent member constructed from an absorbent material compressed to a self-sustaining form, said primary absorbent member having an insertion end, and a withdrawal end;
a secondary absorbent member fixedly attached to said primary absorbent member proximate to said withdrawal end of said primary absorbent member;
said secondary absorbent member comprising a color; and
a withdrawal member comprising a color;
wherein the secondary absorbent member color differs from the withdrawal member color post- use.


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