Ex Parte Bogaerts

Patent Trial and Appeal Board

Apr 23, 2018

13876010 (P.T.A.B. Apr. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/876,010 03/26/2013
81029 7590 04/25/2018
A very Dennison Corporation
Brian G. Bembenick
8080 Norton Parkway, 22D
Mentor, OH 44060
FIRST NAMED INVENTOR
Bert Bogaerts
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
4991-US; AD2013000830 9627
EXAMINER
ANDERSON, CATHARINE L
ART UNIT PAPER NUMBER
3778
NOTIFICATION DATE DELIVERY MODE
04/25/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
patentdocket@averydennison.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BERT BOG AERTS 1
Appeal2017-007832
Application 13/876,010
Technology Center 3700
Before STEFAN STAICOVICI, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Bert Bogaerts ("Appellant") seeks our review under 35 U.S.C.
§ 134(a) of the Examiner's decision to reject claims 1--4, 7-13, 15, 16, and
20-29. 2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 The Appeal Brief lists A very Dennison Corporation as the real party in
interest. Br. 1.
2 Claims 5, 6, 14, 17-19, and 30--46 are canceled. Br. 3.
Appeal2017-007832
Application 13/876,010
CLAIMED SUBJECT MATTER
The claims are directed to a diaper closure system. Spec. i-f 2. Claim
1, reproduced below, is illustrative of the claimed subject matter:
1. A diaper having a front waist region, a rear waist region, a
crotch region extending between the front waist region and the
rear waist region, a topsheet, a backsheet, and an absorbent core
disposed between the topsheet and the backsheet, and at least one
fastener tab extending outward from beyond one of the front
waist region and the rear waist region, wherein the tab includes
a region of spunlace nonwoven material; and
wherein the fastener tab includes a region of exposed
adhesive.
REFERENCES RELIED ON BY THE EXAMINER
Shepard
Seth ("Seth '902")
Seth ("Seth '628")
US 6,205,623 B 1 Mar. 27, 2001
US 2004/0258902 Al Dec. 23, 2004
US 200710172628 Al July 26, 2007
THE REJECTIONS ON APPEAL
(I) Claims 1--4, 7-9, and 23-29 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Seth '902, Seth '628, and Shepard.
(II) Claims 10, 12, 13, 15, 16, and 20-22 are rejected under 35
U.S.C. § 103(a) as unpatentable over Seth '628 and Shepard.
(III) Claim 11 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Seth '628, Shepard, and Seth '902.
2
Appeal2017-007832
Application 13/876,010
Claims 1-4 and 7-9
ANALYSIS
Rejection (I)
The Examiner finds that Seth '902 discloses most of the features of
the diaper of claim 1, but relies on Shepard for teaching an exposed
adhesive. Non-Final Act. 4--5.
Appellant argues that Shepard's "adhesive is not exposed, but rather"
attached to the bag, whereas claim 1 requires "an exposed adhesive." Br. 11.
According to Appellant, there is a difference between an "adhesive []
temporarily exposed to allow the fastener to be attached to an article," as in
Shepard and an "adhesive [that] is exposed after it is attached to the diaper,"
as in claim 1. Id.
The Examiner responds that because the claims "do not require the
adhesive be exposed for any specific length of time prior to use, or remain
exposed during use," the temporary exposure in Shepard when the release
material is removed meets the claims. Ans. 8. The Examiner notes that in
Shepard as well as the present invention, the adhesive "is no longer exposed
when the adhesive portion of the fastener tab is attached to an article." Id.
The Examiner has the better position here. Although Shepard uses a
release material to prevent premature adhesion, claim 1 only requires an
"exposed adhesive," and we agree with the Examiner's finding that
Shepard's adhesive "is exposed when the release material is removed, so
that the adhesive can be used in attachment of the fastener tab." Ans. 8. No
particular time period for exposure is recited. Nor is there any requirement
for exposure in the fastened position. Cf Spec. i-f 56; Fig. 4. Further,
Appellant makes no attempt to explain why the Examiner's rationale for
3
Appeal2017-007832
Application 13/876,010
modifying Seth '902 based in part upon the above-noted finding, is
inadequate. Accordingly, we affirm the rejection of claim 1. Appellant does
not provide separate arguments for claims 2--4 and 7-9, and these claims fall
with claim 1.
Claims 23-29
Independent claim 23 requires, inter alia, a region of exposed pressure
sensitive adhesive on a first face of the tab and a plurality of hook members
also on the first face.
The Examiner finds that Seth '902 discloses most of the limitations of
claim 23 including pressure sensitive adhesive 82 on the first face and a
plurality of hook members 80. Non-Final Act. 5. The Examiner relies on
Shepard to teach that the pressure sensitive adhesive is exposed and reasons
that it would have been obvious to expose Seth '902's pressure sensitive
adhesive "to allow for attachment of the fastener tab to an article." Non-
Final Act. 6.
Appellant argues that because "[t]he adhesive of Seth '902 is used to
adhere the loop portion, opposite the hook portion," Seth '902 does not teach
the "hook and exposed adhesive on the same face of the tab." Br. 12.
According to Appellant, Shepard does not remedy this deficiency because
"the region of (covered) adhesive in Figure lB of Shepard is on the side with
the loop portion, not the face where the hook members are disposed." Id.
The Examiner responds that "claim 23 as presently written does not
require that the region of adhesive form the outer surface of the first face of
the tab." Ans. 8. According to the Examiner, "adhesive 130 of Shepard is
shown in figure lB as being attached to the hook material 126, and therefore
4
Appeal2017-007832
Application 13/876,010
constitutes a portion of the first face of the fastener tab along with the hook
material." Id.
Appellant's arguments are persuasive. In the Non-Final Action, the
Examiner finds that Figure 13 of Seth '902 discloses the adhesive and hooks
on the same face, and uses Shepard for an exposed adhesive. See Non-Final
Act. 5. Seth '902 discloses that Figure 13 depicts a "fastener 80 provided
with a loop material 85 on the face opposite that having the hook elements."
Seth '902 i-f 60. Seth '902 further discloses that the loop is "applied to the
backing 81 of the large area hook fastener 80 by bonding 82 which can be
adhesive, heat, pressure or sonic bonding combinations thereof." Id. Thus,
Appellant is correct that the hook and adhesive of Seth '902 are not on the
same face, because Seth '902 discloses that the adhesive is on the opposite
face to that of the hook and adheres the loops to the opposite face.
The Examiner's position, in the Answer, that Shepard shows pressure
sensitive adhesive as well as a plurality of hook members on a first face of
the tab, is equally untenable. In Shepard, the adhesive is exposed by
removing release liner 132. See Shepard, 7:10-11; Fig. lB. However,
adhesive 130, exposed by removing liner 132, is on the face opposite hooks
126 as seen in Figure lB of Shepard, reproduced below.
FIG. 18
114
' \: :::::::== w
112 11/
::
Figure 1 B of Shepard is a side view of a wrap-tie having loops on
both sides of an elongated loop component.
5
Appeal2017-007832
Application 13/876,010
A preponderance of the evidence does not support the Examiner's
finding that Shepard discloses an exposed pressure sensitive adhesive and a
plurality of hook members on a first face of the tab. As this limitation is
absent from both Seth '902 and Shepard, the Examiner has not adequately
established that the combined teachings of Seth '902 and Shepard would
have resulted in this limitation.
The Examiner's rejection of claim 23 and of claims 24--29 depending
therefrom is reversed.
Rejection (II)
Claim 10 recites, inter alia, "wherein the spunlace material is free of
melt bonded intersections."
The Examiner finds that Seth '628, discloses most of the limitations of
the fastener tab of independent claim 10, including "loop members [] in the
form of a spunlace material, as disclosed in paragraph [0055], which is a
nonwoven that is free of melt bonding between the fibers of the web." Non-
Final Act. 7. The Examiner relies on Shepard to teach a fastener tab having
an exposed adhesive and reasons that it would have been obvious "to
provide the fastener tab of Seth ['628] with a region of exposed pressure
sensitive adhesive, as taught by Shepard, to allow for attachment of the
fastener tab to an article." Id.
Appellant argues that Shepard does not teach or suggest a region of
exposed pressure sensitive adhesive. Br. 12.
For the reasons discussed above in Rejection (I), we do not find this
argument to be persuasive.
6
Appeal2017-007832
Application 13/876,010
Appellant also argues that because "Seth '628 teaches selective
extrusion bonding between the substrate and the loops ... there are melt
bond intersections in the spunlace material." Br. 12. According to
Appellant, the disclosure in the present Specification that "nonwoven
materials use some type of bonding in the fiber structure to form loops,"
including "bonding the fibers to a substrate" applies to the extrusion bonding
of Seth '628, and thus Seth '628's spunlace material is not "free of melt
bond intersections." Id. (citing Spec. i-f 40).
The Examiner responds that Seth '62 8 distinguishes between
nonwoven materials that are spunbond and spunlaced, and "does not disclose
extrusion bonding with respect to the embodiment of a spunlace nonwoven."
Ans. 8. According to the Examiner, "[ s ]punlace non woven materials are
hydroentangled, not melt-bonded, and therefore the spunlace nonwov[ e Jn
taught by Seth '628 will be free of melt bond intersections." Ans. 9.
Appellant's arguments are not persuasive because Appellant does not
adequately explain how the claimed spunlace material is free of melt bonded
intersections whereas the spunlace material of Seth '628 includes melt
bonded intersections. Appellant's Specification discloses that "nonwoven
spunlace material is distinguishable from conventional nonwoven and non-
spunlace materials," because nonwoven spunlace is mechanically
interlocked, not bonded, but that "[ o ]ther types of non woven materials use
some type of bonding." Spec. i-f 40. Appellant's Specification does not
disclose different types of spunlace materials and rather distinguishes
spunlace material from other materials.
Seth '628 discloses that "[s]uitable processes for making nonwoven
fibrous webs that may be used in connection with the present invention
7
Appeal2017-007832
Application 13/876,010
include, but are not limited to, airlaying, spunbond, spunlace, bonded melt
blown webs and bonded carded web formation processes," and that
"[ s ]punbond non woven webs are made by extruding a molten thermoplastic"
that is "preferably bonded." Seth '628, i-f 55. As the Examiner correctly
notes, Seth '628 distinguishes between a spunbond web and a spunlace web,
with the spunbond web being extrusion bonded. Ans. 8. Appellant does not
point to any specific portion of Seth '628 that discloses that Seth '628 's
spunlace process requires extrusion bonding to form loops. Rather, the
Examiner has a sound basis for finding that Seth '628's "[s]punlace
nonwoven materials are hydroentangled, not melt-bonded." Ans. 9. 3
The Examiner's rejection of claim 10 is affirmed. Appellant makes
no separate arguments for dependent claims 12, 13, 15, 16, and 20-22. See
Br. 12. Accordingly, these claims fall with claim 10.
Rejection (III)
Appellant does not separately address Rejection (III). See Br. 10-12.
Accordingly, this rejection is affirmed.
DECISION
The Examiner's decision to reject claims 1--4, 7-9, and 23-29 as
unpatentable over Seth '902, Seth '628, and Shepard is affirmed as to claims
1--4 and 7-9, and reversed as to claims 23-29.
3 One dictionary definition of "spunlace" provides that a spunlaced fabric is
"[m]ade by mechanically bonding a dry-laid staple fabric by water jet, which
entangles the individual fibers.
https://glosbe.com/en/en/spunlaced (last accessed Apr. 9, 2018).
8
Appeal2017-007832
Application 13/876,010
The Examiner's decision to reject claims 10, 12, 13, 15, 16, and 20-
22 as unpatentable over Seth '628 and Shepard is affirmed.
The Examiner's decision to reject claim 11 as unpatentable over Seth
'628, Shepard, and Seth '902 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
9