Ex Parte Abuto et al

Patent Trial and Appeal Board

Dec 21, 2016

13481366 (P.T.A.B. Dec. 21, 2016)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
64802388US01 1744
EXAMINER
STEPHENS, JACQUELINE F
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
13/481,366 05/25/2012
23556 7590 12/21/2016
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
NEENAH, WI54956
Frank P. Abuto
12/21/2016 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANK P. ABUTO, DEBORAH J. CALEWARTS,
JENNY L. DAY, KEYUR M. DESAI, JEFFREY F. JURENA, JIAN QIN,
and DONALD E. WALDROUP
Appeal 2015-002017
Application 13/481,366
Technology Center 3700
Before ERIC B. GRIMES, ULRIKE W. JENKS, and
ROBERT A. POLLOCK, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL
This is a decision on appeal1 under 35 U.S.C. § 134 from the
Examiner’s rejection of claims 1—17. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
1 Appellants identify the Real Party in Interest as Kimberly-Clark
Worldwide, Inc. (Br. 1).
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STATEMENT OF THE CASE
The Specification discloses “feminine pads and other personal care
articles [that] provide an enhanced feel yet still have the same function of a
typical bodyside liner at a lower cost” (Spec. 2:9—11).
Claim 1, the only independent claim, is representative of the claims on
appeal and reads as follows:
1. A personal care absorbent article comprising at least two
substrates each having an internal and external surface,
wherein at least one substrate is a fluid permeable bodyside substrate
selected from spunbond, meltblown, coform, airlaid, bonded-carded web,
spunlace materials and combinations thereof;
at least one substrate is a fluid impermeable backsheet; and
an absorbent core disposed in between said substrates;
wherein at least the external surface of at least one substrate has
applied to it an additive composition wherein said additive composition is a
polymer dispersion selected from polyolefin dispersions, polyisoprene
dispersions, polybutadiene-styrene block copolymer dispersions, latex
dispersions, polyvinyl pyrrolidone-styrene copolymer dispersions, polyvinyl
alcohol-ethylene copolymer dispersions, and combinations thereof; and an
enhancement component selected from microparticles, expandable
microspheres, fibers, additional polymer dispersions, scents, anti-bacterials,
moisturizers, medicaments, soothers and combinations thereof.
Issue
The Examiner has rejected claims 1—17 under 35 U.S.C. § 103(a) as
obvious in view of Soerens2 and Abuto3 (Ans. 3—5).
The issue presented is: Does the evidence of record support the
Examiner’s conclusion that it would have been obvious to one of ordinary
2 Soerens et al., US 2010/0159200 Al, published June 24, 2010.
3 Abuto et al., US 2006/0135932 Al, published June 22, 2006.
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skill in the art to apply the additive composition of Soerens to the personal
absorbent article of Abuto and thereby arrive at the personal care absorbent
article of claim 1?
Findings of Fact
1 „ The Examiner finds that Abuto discloses a personal care
absorbent: article comprising the bodyside substrate, backsheet, and
absorbent core recited in claim 1 (Ans. 3). Appellants do not dispute this
finding (Br. 3-4).
2. The Examiner finds that Soerens discloses a personal care
absorbent article having applied to its surface a polymer dispersion as recited
in claim 1 (Ans. 3).
3. Soerens discloses fibrous products “containing an additive
composition . . , comprising] a water-soluble film forming component, a
first water-soluble modifier component and a hydrophobic polymer
component” (Soerens, Abstract). “The additive composition may improve
the perceived softness of the web without substantially affecting the
absorbency of the web in an adverse manner” (id.).
4. Soerens discloses that the “fibrous product may comprise, for
instance, a bath tissue, a tissue, a paper towel, a napkin, an industrial
wiper, a premoistened wiper, and the like” (id. f 7). “The additive
composition can be incorporated into the fibrous product in order to improve
the feel of the product without significantly affecting the absorbency,
strength and/or blocking behavior of the product in a negative manner” (id.).
5. Soerens discloses that the “fibrous web comprises pulp fibers
and an additive composition , on the first side of the fibrous web" (id. f 8).
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6. Soerens discloses that “the hydrophobic polymer comprises a
rubbery polymer latex component, „ . [such as] polyisoprene, polybutylene,
and polyisobutylene” (id, f 9).
7. Soerens discloses that the water-soluble film forming
component forms “a film on the surface of a fibrous web or dryer surface . , .
[and] improve[s] adhesion properties of the web to a paper machine dryer”
(id. f 100). “When topically applied to a web . . ., the additive composition
can form a discontinuous but interconnected film” (id.). “[T]he openings
allow' liquids to be absorbed through the discontinuous film and into the
interior of the fibrous web” (id.).
8. Soerens discloses that “[f]ibers suitable for making fibrous
webs comprise any natural or synthetic fibers” (id. f 118).
9. The Specification discloses that personal care absorbent articles
include “feminine pads, adult incontinence articles, diapers, training pants
and the like” (Spec. 1:11—13).
Analysis
The Examiner finds that Soerens discloses a personal care absorbent
article having a benefit agent applied to it that includes the additive
composition recited in claim 1, i.e., a polymer dispersion and an
enhancement component (Ans. 3). The Examiner finds that Abuto discloses
“an absorbent care article having the claimed substrates and materials” (id.).
The Examiner concludes that it would have been obvious to one of ordinary
skill in the art to apply Soerens’ additive composition to an “absorbent
article as taught in Abuto since Soerens and Abuto both teach the additive is
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appropriate for various types of absorbent hygiene products, and specifically
both references teach wipes as personal care products” (id. at 3 4).
We agree with the Examiner that the article of claim 1 on appeal
would have been obvious based on the cited references. Abuto discloses
absorbent articles having the substrates and absorbent core recited in claim 1
(Abuto 14). Suitable absorbent articles include “health/medical absorbent
articles” and “household/industrial absorbent articles” (id. 117), both of
which include wipes (id. Tflf 23, 24).
Soerens discloses an additive composition for fibrous products,
including wipes (FF 4) that includes a hydrophobic polymer component such
as polyisoprene (FF 3, FF 6). Soerens discloses that the polyisoprene can be
in the form of an aqueous dispersion (Soerens 1107), as recited in claim 1.
Soerens also discloses that its composition can contain other ingredients
such as perfumes, fibers, or emollients (id. 1130). Thus, it would have been
obvious to formulate Soerens’ composition to include a polymer dispersion
and an enhancement component as recited in claim 1, and to apply it to
Abuto’s wipes, as suggested by Soerens.
Appellants argue that Soerens does not disclose or suggest “personal
care absorbent articles” (Br. 3). Appellants argue that Soerens “describes
web-based materials such as tissue” and the Examiner “provides no basis for
considering tissue to be a personal care absorbent article,” which “is
contrary to the explicit definition and usage of personal care absorbent
articles in the present application” (id.).
Appellants’ argument is not persuasive. The Specification discloses
that personal care absorbent articles include training pants, among other
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things (FF 9), and Abuto discloses absorbent articles such as training pants
(Abuto 14). Soerens discloses that its composition improves the feel of the
product without reducing absorbency (FF 4), and thus it would have been
obvious to apply it to Abuto’s training pant.
Appellants argue that it is unclear “why one would modify Abuto by
turning to Soerens for a tissue web in that Abuto describes no use of tissue.
As such, there is no motivation to combine or modify the references” (Br. 4).
Appellants argue that Soerens “describes treating a web of tissue, [and]
Abuto does not use tissue in any embodiment” (id.).
Appellants’ argument is not persuasive. “The combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” KSR Ini 7 Co. v. Teleflex Inc., 550
U.S. 398, 416 (2007). “If a person of ordinary skill can implement a
predictable variation [of a known work], §103 likely bars its patentability.”
Id. at 417. As discussed above, Soerens discloses that the additive
composition improves the softness of the web without reducing absorbency
(FF 3) or strength (FF 4). Soerens discloses that its composition can be
applied to materials made of a variety of fibers (FF 8), We agree with the
Examiner that it would have been obvious to one of ordinary skill in the art
to apply the additive composition of Soerens to the training pants of Abuto
to obtain advantages disclosed by Soerens.
Appellants argue that the Examiner “does not provide a reasonable
expectation of success in combining the references” (Br. 4). However,
“obviousness cannot be avoided simply by a showing of some degree of
unpredictability in the art so long as there was a reasonable probability of
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success. . , . [T]he expectation of success need only be reasonable, not
absolute.” Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1364 (Fed. Cir. 2007).
“Obviousness does not require absolute predictability of success. . . .
that is required is a reasonable expectation of success.” In re O ’Farrell, 853
F.2d 894, 903-04 (Fed. Cir. 1988). Here, Soerens discloses that its
composition can be applied to materials made from a variety of fibers in
order to improve softness without reducing strength (FFs 3, 4, 8). We agree
with Examiner that one of skill in the art would have had a reasonable
expectation of success in applying the additive composition of Soerens to the
training pant of Abuto because Soerens’ and Abuto’s products are both made
of fibers.
Thus, we affirm the rejection of claim 1 under 35 U.S.C. § 103(a).
Claims 2—17 have not been argued separately and therefore fall with claim 1.
See 37 C.F.R. § 41.37(c)(l)(iv).
Conclusion of Law
The evidence of record supports the Examiner’s conclusion that it
would have been obvious to one of ordinary skill in the art to apply the
additive composition of Soerens to the personal absorbent article of Abuto
and thereby arrive at the personal care absorbent article of claim 1.
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SUMMARY
We affirm the rejection of claims 1—17 under 35 U.S.C. § 103(a).
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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