McNeil Vindicated at CAFC

Scott Daniels | July 31, 2009

McNeil-PPC, Inc. filed a request for reexamination of its U.S. Patent No. 6,310,269 in November 2002, and today, after more than six years and a series of adverse decisions at the PTO, it finally prevailed at the CAFC.

The ‘269 patent claims a feminine hygiene tampon having a solid fiber core. Claim 1 recites that the core is denser than radially projecting ribs (the core density limitation) and that the ribs are narrower at their bases than at their distal ends (the rib shape limitation). McNeil filed its request for reexamination of the ‘269 claims in light of 22 prior art references, most notably the Sasaki reference which was not before the PTO during the original prosecution. McNeil’s request specifically advised the PTO that Sasaki failed to satisfy either the core density or rib shape limitations of claim 1.

Nevertheless, the examiner rejected claim 1 as being anticipated by Sasaki, and on November 8, 2007, the PTO Board of Appeals affirmed the anticipation rejection, holding that “Sasaki reasonably appears to depict a tampon having a generally cylindrical absorbent portion with a generally cylindrical compressed solid fiber core from which longitudinal ribs extend radially outward.”

The CAFC found that the Board had appeared to misunderstand claim 1 and that there was “nothing in Sasaki [that] indicates the relative compression of any portion of Sasaki’s tampon.” The CAFC added that Sasaki failed to disclose “a finished product with a core denser than the ribs.” The CAFC concluded that the rejection was not supported even under the substantial evidence standard and reversed.

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