by Dennis Crouch
Kimberly-Clark v. Naty (E.D. Wisc. 2012)
Twenty years ago, Kimberly-Clark scientists had the idea of creating a diaper with an "elastomeric ear" having non-parallel edges. The patent (No. 5,496,298) issued in 1996 (sixteen years ago). In the side figure, I have circled this novel feature of the design. The curved edge and stretchiness make the diaper more comfortable. The patent itself does not claim comfort or curvedness. Rather, the claim simply spells out the physical elements of the diaper design.
In 2010, an ex parte reexamination was begun and KC cancelled all 30 issued claims but then added an additional four claims. I have reproduced the broadest claim below with the new limitations in italics. As you can see, the new limitation is related to the shape of the curved edge of the elastomeric ear – labeled as 40 in the circled portion of the diagram. The newly added limitations that were apparently novel in 1993 are that a portion of the curved edge is "generally parallel" to the top edge (labeled 38) and another portion of the curved edge is not parallel to the top edge.
The new claim:
31. A disposable absorbent article, said article defining a front portion, a rear portion, and a crotch portion connecting the front and rear portions; said article comprising:
an outer cover;
a liquid-pervious bodyside liner;
an absorbent material located between said cover and said bodyside liner; a pair of elastomeric ears attached to said rear portion, said ears having a proximal edge, a distal edge, a first connecting edge, and a second connecting edge, said first and second connecting edges connecting said proximal and distal edges, said second connecting edge being non-parallel to said first connecting edge and said proximal edge being longer than said distal edge;
a fastener joined to said elastomeric ears for attaching said elastomeric ears to said front portion in an overlapping relationship; wherein, when in use, said second connecting edge defines at least a portion of a leg opening,
wherein the second connecting edge comprises a first segment and a second segment, the first segment extending outward from the proximal edge and being generally parallel to the first connecting edge, the second segment extending between the first segment and the distal edge and being non-parallel to said first connecting edge.
In a recent action, KC has sued Naty Babycare for infringement of the '298 patent. Naty is a Swedish company that claims to be making all natural and largely eco-friendly diapers. Unfortunately for Naty, the '298 patent still has one year on its term and the patent seemingly covers eco and non-eco products alike. The drawing below from Naty's website shows the diaper in cartoon form.
KC has asked for injunctive relief. Of course, the patent will be expired before trial. However, KC may also request preliminary injunctive relief. I wonder how the upcoming expiry date should impact the eBay inquiry.
no surprise.
“You senators are way too Pampered.”
Sometimes a little emphasis can be fun.
Dennis,
Given that this patent was reexamined in 2010, are intervening rights in play? See post on Marine Polymer en banc decision above. It all depends (and no pun intended) comes down to whether the Naty Babycare diaper came out before or after the reexamine concluded.
Yeah, the taxpayers have cut us representatives’ budgets so low that I can only afford huggies for the Cristal drink offs on those long cross country military flights. This budget cutting is really getting out of hand.
You senators are way too pampered.
“Friend of 6… not”
I sometimes wonder if people like this realize that they are literally feeding my ego with the rough equivalent of rib eye steak.
All of a sudden… KNOCK ON WOOD. Will not pop or roll shows it to be small too. “Superman” the one that flew in from Canada that only came back folded,the Applicant , unlike myself, who has tried many many times to change my Address and I am again blocked, Kent was able to change Canada to USA in midstream, “What up with that?”
I get that. Mine had a statement to the one who claimed never to get my Drawings. It stated will not pop or roll. I wondered why he used the Drawings but not the awesome writing of the claim. That must make Him in need of a diaper change.
Balance of convenience?
“Without fudging”?
Really?
I just throw the functional in to avoid that ridiculous catch 22 final rejection.
The faulty premise is Ebay, not Ned’s point.
How’s that? Either a patentee is granted the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States, or they aren’t. What difference does it make how long is left on the patent?
“The patent itself does not claim comfort or curvedness. Rather, the claim simply spells out the physical elements of the diaper design.”
Is this important? In my experience, examiners put applicants on the horns of a dilemma:
Examiners say they only look at structure, so spelling out in the claim why the structure has benefits is not needed. If you do add it to the claim, you get “we don’t give functional stuff any weight in an apparatus claim.”
If you don’t add the benefit to the claim, like the applicant here, and then argue that the structure provides benefits, you get “It’s not in the claim so you argument is addressed to unclaimed subject matter and therefor irrelevant.”
Arrgh!
Your question is based on a faulty premise, Ned, so it doesn’t make any sense.
They are.
Another question:
If a court denies an final injunction, it will now instead command the patent owner to grant a compulsory license at what the court determines to be a reasonable royalty.
Where in the law or statute does the losing infringer obtain a right to force the patent owner to license his patent against his will?
“Either it is a right to exclude, or it is not.”
Equity is all about the non-black letter portions of the law, and as such, cannot turn its face away from how much time is left. How much time is left speaks directly to the equitable balances at play.
Agree with Nedster. Either it is a right to exclude, or it is not. Use the factors as given, without fudging, whether the patent have 10 years left or 5, or 3, or 2, or 1.
Malcolm Mooney = PHOSITA
Why should it have any impact at all?
“I wonder how the upcoming expiry date should impact the eBay inquiry.”
Limited shelf life = greater sense of “got to go” emergency?
Those look really comfortable.
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