Ex Parte Bogaerts et al

Patent Trial and Appeal Board

May 11, 2018

14005599 (P.T.A.B. May. 11, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/005,599 09/17/2013
81029 7590 05/15/2018
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.
5366-US; AD2013002413 5918
EXAMINER
NORDMEYER, PATRICIA L
ART UNIT PAPER NUMBER
1788
NOTIFICATION DATE DELIVERY MODE
05/15/2018 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 BOGAER TS 1
and Johan Van Steele
Appeal2017-007626
Application 14/005,599
Technology Center 1700
Before MARK NAGUMO, N. WHITNEY WILSON, and JULIA HEANEY,
Administrative Patent Judges.
NAGUMO, Administrative Patent Judge.
DECISION ON APPEAL
Bert Bogaerts and Johan Van Steele ("Bogaerts") timely appeal
under 35 U.S.C. § 134(a) from a non-final rejection2 of claims 1---6 and 8-
13. 3 We have jurisdiction. 35 U.S.C. § 6. We reverse.
1 The real party in interest is identified as A very Dennison Corporation.
(Appeal Brief, filed 20 December 2016 ("Br."), 1.)
2 Office Action mailed 24 February 2016 ("Office Action"; cited as "OA").
A Request for Continued Examination under 37 C.F.R. § 1.114 was
entered 16 February 2016.
3 Remaining copending claims 14--37 and 39 have been withdrawn from
consideration by the Examiner (FR 1, § 5a), and are not before us.
Appeal2017-007626
Application 14/005,599
A. Introduction 4
OPINION
The subject matter on appeal relates to a closure tape assembly for
items such as disposable diapers (Spec. 1 [0002]), particularly diapers that
are made of soft, high loft, low-density nonwoven materials (id. at 2 [0007]).
According to the '599 Specification, it is difficult to form a satisfactory
permanent adhesive "factory joint" between a fastener and a high loft, low
density nonwoven material because relatively few fibers come into adhesive
contact with the adhesive surfaces of the fastener. (Id.) Moreover, many
commonly used adhesives for these purposes are said to be relatively hard
and resistant to flow. (Id. at [0008].) Using higher lamination pressures to
overcome these problems is said to be unsatisfactory because expensive,
bigger equipment may be necessary, and because components of the fastener
such as hooks of hook-and loop fasteners that may be present tend to be
damaged by the higher pressures. (Id. at 3 [0009].)
Bogaerts seeks patent protection for a fastener that is said to overcome
the problems of the prior art by providing a tape bearing a patterned
adhesive for contact with the low-density nonwoven article.
(Id. at 22 [0070].) When the patterned adhesive is pressed against the
nonwoven article by a pressing die, particularly by a pressing die sized and
shaped to correspond to the shape and size of the adhesive regions
4 Application 14/005,599, Closure tape with patterned adhesive,
filed 17 September 2013 as the national stage under 35 U.S.C. § 371 of
PCT/US2012/030168, filed 22 March 2012, claiming the benefit of a
provisional application filed 22 March 2011. We refer to the
'"599 Specification," which we cite as "Spec."
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Appeal2017-007626
Application 14/005,599
(id. at 23 [0072]), a much greater degree of contact-i.e., many more fibers
adhered to the adhesive---can be obtained, as shown in Figures 12 and 13,
below.
FIG. 12
FIG. 13
{Figures 12 and 13 (magnified view) show the effect of pressing fastener
system 500 comprising support layer 510 with patterned adhesive 522 onto
nonwoven fibrous substrate 530, resulting in relatively compressed
regions 536 adhered to the fastener}
An embodiment of the invented fastener device is illustrated in
Figure 1 (below left). The fastener attached to a diaper prior to use by the
consumer is illustrated in Figure 3 (below right).
22b
20 ~~1~' M;, <;!g~~~~~~~~~
{Figure 1 shows a fastener prior to
attachment to a diaper}
{Figure 3 shows a fastener attached
to a diaper before use}
Fastener 10 comprises fastening tape 20 and release tape 50,
adhesively attached to one another at hinge region 50a. Fastening tape 20
comprises backing film 22, which bears adhesive layer 24 on fastening
surface 22a. (Id. at 12 [0045].) Release tape 50 comprises backing film 52,
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Appeal2017-007626
Application 14/005,599
which is coated on contacting side 52b by release coating 56, and which
bears, on opposite side 52a, patterned adhesive layer 54. (Id. at 14 [0050].)
Proximal end of fastener 10 (i.e., the left hand side, in Figure 1), is adhered
at the edge of an adsorbent article 90, such as a diaper, to outer face 92, by
adhesive layer 24, as shown in Figure 3, supra. The factory joint is
completed by folding the tape around the edge of the diaper and adhering
release portion 50 to inner surface 94 by patterned adhesive 54.
(Id. at 15 [0054].)
When the diaper is deployed, finger lift 26 helps bring the distal end
to its full extension (see Figure 4, not reproduced here), exposing hitherto
hidden adhesive layer 24. The diaper is secured about the body by pressing
distal adhesive region 24 of the fastener to a "landing zone" (allowing
releasable attachment for inspection) on an outer portion of the diaper.
(Id. 2 [0005]).)
Claim 1 is representative and reads:
A composite tape from which a closure tab [10] for
disposable articles can be cut, the tape comprising:
a fastening tape [20] defining a distal end and an opposite
proximal end, the fastening tape including
a backing film [22], and
an adhesive layer [24] disposed on at least a portion of
the backing film;
a release tape [ 50] defining a distal end and an opposite
proximal end, the release tape including
a backing film [52],
an adhesive layer [54] disposed on a first face [52a] of the
backing film,
a hinge component [50a] disposed at the proximal end of
the release tape,
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Appeal2017-007626
Application 14/005,599
the release tape also defining a second face [52b]
oppositely directed from the first face;
wherein the fastening tape [20] and the release tape [50] are
sized and configured for attachment to one another such that
the hinge component [50a] of the release layer[ SJ [50?]
contacts the adhesive layer [24] of the fastening tape [20]
and is adhesively attached thereto, and
the adhesive layer [54] of the release tape [50] is
arranged in a pattern configuration wherein the pattern
configuration includes a plurality of rows of
adhesive [54],
each adhesive row [54] separated from immediately
adjacent adhesive rows [54] by a spacing row [52a].
(Claims App. A-1; some indentation, paragraphing, emphasis, and bracketed
labels to Figure 1 added.)
The Examiner maintains the following grounds of rejection6' 7 :
A. Claims 1--4, 6, and 8-13 stand rejected under 35 U.S.C. § 103(a)
in view of the combined teachings of Van Steen 8 and Cronkrite. 9
Al. Claim 5 stands rejected under 35 U.S.C. § 103(a) in view of the
combined teachings of Van Steen, Cronkrite, and Ronn. 10
5 The word "layer" lacks formal antecedent basis in the claim, and may be a
word-processing error for -tape-.
6 Examiner's Answer mailed 21 February 2017 ("Ans.").
7 Because this application was filed before the 16 March 2013, effective
date of the America Invents Act, we refer to the pre-AIA version of the
statute.
8 Johan Van Steen, Fastening device, WO 2008/156931 Al (2008)
(assigned to Avery Dennison Corp.).
9 William E. Cronkrite, Tape tab fastener for disposable diaper, U.S. Patent
No. 4,299,223 (1981).
1° Karl P. Ronn, Absorbent article having an adjustment system, U.S. Patent
No. 5,944,707 (1999).
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Appeal2017-007626
Application 14/005,599
B. Discussion
The Board's findings of fact throughout this Opinion are supported by
a preponderance of the evidence of record.
Bogaerts urges the Examiner erred harmfully in finding that Van
Steen Figure 17, reproduced below,
50
l
j .... --·--·-- '" .... -..... . ____ }' .. -- ...... ---- .. --- ----- ..
\i
{Van Steen Figure 17 shows a fastening device}
would have taught or suggested that a fastening tape be adhesively attached
to a release tape at a hinge component. (Br. 8-9.) In Bogaerts's view, the
fastening device attached to substrate 26 in Figure 17 would not have
provided the basis for such a suggestion, because the fastening device is
made from a single tape. Thus, Bogaerts argues, there is in this embodiment
no teaching or suggestion of an adhesive attachment between a fastening
tape and a release tape. (Id.)
The Examiner reasons that this limitation is met because Figure 17
illustrates a modified version of the fastening tape [sic: device] shown in
Figure 3 (not reproduced here). (Ans. 7, 11. 4-5.) The Examiner explains:
[t]he adhesive layer disclosed in Figure 17 is a continuous
layer of adhesive which connects all the individual
components of the fastening tape. Therefore, the hinge
component of the release layer contacts the adhesive layer of
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Appeal2017-007626
Application 14/005,599
the fastening tape and is adhesively attached thereto since
there is only one adhesive layer in the entire construction
connecting all of the elements, thereby meeting all of the
claim limitations.
(Id. at 11. 8-12; emphasis added.)
The difficulty with this analysis is that the claim calls for a composite
tape comprised of two different tapes, namely, a "fastening tape" and a
"release tape," that are adhered to one another at a "hinge component." The
closure device 10 described by Van Steen in Figure 3 is comprised of three
tapes adhered to one another, 11 and the alternative closure device illustrated
in Figure 17 comprises a single tape. As Bogaerts argues, "[t]he Examiner
picks the embodiment of the continuous tape and tries to apply it to an
unrelated embodiment." (Br. 9, 11. 8-9.) Put another way, the Examiner has
not explained satisfactorily how the relied-upon embodiments would have
taught or suggested the required hinge component at the proximal end of the
release tape where the hinge component of the release layer contacts the
11 In Van Steen's words, "[a] fastening device can comprise an anchor level
for permanent attachment to an anchoring surface, a fastener level for
selective attachment to a fastening surface, and an extender level
therebetween." (Van Steen 1, 11. 6-9.) In the figures, Van Steen identifies
the three levels as anchor level 30, extender level 40, and fastener level 50.
(Van Steen 3, 11. 15-16.) The Examiner identifies element 30 (the anchor
level) as corresponding to the recited release layer, and element 50 (the
fastening level) as corresponding to the recited release layer. (OA, para.
bridging 2-3.) The Examiner does not discuss extension level 40. Although
the terms "fastening tape" and "release tape" are merely labels and claim 1
does not specify any functions that these tapes must perform, and the claim
is correspondingly broad, the Examiner has not shown that every recited
element, arranged as required by the claim, would have been obvious in
view of the teachings of the applied prior art.
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Application 14/005,599
adhesive layer of the fastening tape, as required by claim 1. Moreover, the
Examiner has not directed our attention to any disclosure in
the '599 Specification that indicates some broader interpretation of the terms
"fastening tape" and "release tape" is implied such that two tapes, each
having a backing film and an adhesive film, that are joined adhesively
together, can also be a single tape having a common backing film and a
common adhesive layer.
The Examiner's findings regarding the teachings of Cronkrite, or
regarding the teachings of Ronn relating to the limitations recited in claim 5,
do not cure the defects of Steen. We therefore reverse the appealed
rejections.
C. Order
It is ORDERED that the rejection of claims 1---6 and 8-13 is reversed.
REVERSED
8