(CN) – The Federal Circuit overturned the rejection of McNeil-PPC’s tampon design, saying its patent claims differed from a Japanese company’s design.
McNeil’s patent covers a tampon with a dense fiber core and projecting ribs that are narrower at their bases. A drawing of a cross section looks like a sun with mushroom-shaped rays.
The unexamined patent application of Japanese company Tetsu Sasaki described a “tampon blank” made by stitching together layers of material and then molding it into a finished tampon. Its design looks more like the paddles of a water mill.
The examiner rejected three of McNeil’s claims as obvious in light of Sasaki’s patent application, and an appeals board affirmed.
McNeil again appealed, arguing that Sasaki never disclosed the relative densities or coarseness of the core or ribs. McNeil also claimed that Sasaki’s ribs were less dense at the base than at the proximal end, rather than from the outside in, as described in McNeil’s patent claims.
After deeming the appeal timely, the Federal Circuit rejected the board’s findings on the first claim.
“There is not substantial evidence, indeed, no evidence, that Sasaki discloses ribs ‘compressed less than the fiber core’ or ‘a generally cylindrical compressed, solid fiber core,'” Chief Judge Michel wrote.
And because the claims “stood or fell together,” the court reversed the board’s rejection of the other two claims.
Judge Dyk dissented, saying the appeal should have been rejected as untimely.