Ex Parte Boggs et al

Patent Trial and Appeal Board

Sep 27, 2012

11018768 (P.T.A.B. Sep. 27, 2012)

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.
11/018,768 12/20/2004 Lavada C. Boggs KCX-1336 (17616) 8945
22827 7590 09/27/2012
DORITY & MANNING, P.A.
POST OFFICE BOX 1449
GREENVILLE, SC 29602-1449
EXAMINER
CRAIG, PAULA L
ART UNIT PAPER NUMBER
3778
MAIL DATE DELIVERY MODE
09/27/2012 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 LAVADA C. BOGGS, BRYAN D. HAYNES,
HUGHEY K. JEFFRIES, HANNONG RHIM,
JACQUELINE SCHMIDT ROSE, C. ALLEN SMITH,
ROBERT D. WRIGHT and ALI YAHIAOUI
____________________

Appeal 2010-002905
Application 11/018,768
Technology Center 3700
____________________

Before EDWARD A. BROWN, MICHELLE R. OSINSKI, and
SCOTT E. KAMHOLZ, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-002905
Application 11/018,768

2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1, 3, 9-15, 23-27, and 29-33. (Reply Br. 1).1 We
have jurisdiction over this appeal under 35 U.S.C. § 6(b).
We affirm.
THE CLAIMED SUBJECT MATTER
Independent claim 1, reproduced below, is illustrative of the appealed
subject matter.
1. A personal care product comprising:
a. a liquid impervious backing
sheet,
b. a liquid pervious bodyside liner
comprising a nonwoven fabric composite
that comprises at least one elastic layer of
meltblown fibers and at least one nonelastic
extensible layer of spun bonded fibers,
wherein the at least one layer of meltblown
fibers comprises fibers that comprise a blend
of an elastomeric polymer and an internal
wetting agent, wherein the internal wetting
agent comprises an hydrogenated
ethoxylated oil, and
c. an absorbent material disposed
between the liquid impervious backing sheet
and the liquid pervious bodyside liner.

1 In the Reply Brief, Appellants confirm that the listing of appealed claims in
the Appeal Brief was incorrect. (See App. Br. 2).
Appeal 2010-002905
Application 11/018,768

3
THE REJECTIONS
Appellants seek review of the following rejections under 35 U.S.C.
§ 103(a):
1. Claims 1, 3, 9, 10, 12, 14, 15, 23, 25, 32, and 33 as
unpatentable over Tanzer (US 6,570,056 B1; iss. May 27, 2003) and
Yahiaoui (US 6,028,016; iss. Feb. 22, 2000). (Ans. 3).
2. Claim 11 as unpatentable over Tanzer, Yahiaoui, and Abuto
'743 (US 5,964,743; iss. Oct. 12, 1999). (Ans. 8).
3. Claims 13 and 29-31 as unpatentable over Tanzer, Yahiaoui,
and Abuto '592 (US 5,458,592; iss. Oct. 17, 1995). (Ans. 8).
4. Claim 24 as unpatentable over Tanzer, Yahiaoui, and Roessler
(US 6,552,245 B1; iss. Apr. 22, 2003). (Ans. 10).
5. Claims 26 and 27 as unpatentable over Tanzer, Yahiaoui, and
Pike (US 5,382,400; iss. Jan. 17, 1995). (Ans. 11).
ANALYSIS
Claims 1, 3, 9, 10, 12, 14, 15, 23, 25, 32, and 33 - Tanzer and Yahiaoui
Appellants argue claims 1, 3, 9, 10, 12, 14, 15, 23, 25, 32, and 33 as a
group. (App. Br. 4-10). We select claim 1 as representative of the grouping;
claims 3, 9, 10, 12, 14, 15, 23, 25, 32, and 33 stand or fall with claim 1. See
37 C.F.R. § 41.37(c)(1)(vii) (2011).
Claim 1 recites, inter alia, "wherein the at least one layer of
meltblown fibers comprises fibers that comprise a blend of an elastomeric
polymer and an internal wetting agent, wherein the internal wetting agent
comprises an hydrogenated ethoxylated oil." The Examiner found Tanzer
discloses a liquid pervious body-side liner including a nonwoven fabric
composite including an elastic layer of meltblown fibers, in which the elastic
Appeal 2010-002905
Application 11/018,768

4
layer includes a wetting agent. (Ans. 3-4). The Examiner found Tanzer
does not expressly disclose that the wetting agent is an internal wetting agent
or includes an hydrogenated ethoxylated oil. (Ans. 4).
The Examiner found Yahiaoui teaches a personal care product with
hydrogenated ethoxylated oil as an internal wetting agent to a layer of
meltblown fibers in a nonwoven fabric composite. (Ans. 4). The Examiner
concluded that it would have been obvious to one of ordinary skill in the art
to modify Tanzer's article to include an internal wetting agent of
hydrogenated ethoxylated oil to provide desirable wettability properties after
multiple insults, as taught by Yahiaoui. (Ans. 5).
Appellants contend that Tanzer and Yahiaoui fail to teach or suggest a
layer of meltblown fibers that comprises a blend of an elastomeric polymer
and an internal wetting agent. (App. Br. 5). Appellants contend that "[t]he
present specification discloses that when utilizing an internal wetting agent
to impart fiber surface modification, the wetting agent is melt extruded with
the elastic meltblown fibers." (App. Br. 6) (citing Spec. 3:4-7). Here,
Appellants' Specification describes that:
These fibers can be surface modified to become
water wettable. Fiber surface modification can be
achieved via internal melt addition during the
extrusion process and suggested internal wetting
agents (or surfactants) include, but are not limited
to, modified castor oils, hydrogenated ethoxylated
castor oils, sorbitan monooleate, ethoxylated
siloxanes, and mixtures thereof.
Appellants contend that "the wetting agent is more uniformly dispersed
throughout the layer rather than simple topical application." (App. Br. 6).
Appellants further contend that Yahiaoui discloses the topical
application of Ahcovel (App. Br. 6), and fails to disclose or suggest an
Appeal 2010-002905
Application 11/018,768

5
"internal wetting agent as described and claimed by Appellants" (App. Br.
7).2 Appellants contend that their Specification "discloses an alternate
embodiment wherein the wetting agents are topically applied such as in
Yahiaoui (see for example Fig. 1 of Yahiaoui)." (Reply Br. 3). Appellants
state that, "[a]s taught by Appellants, '(f)iber surface modification can also
be achieved by topical application of wetting agents (or surfactants) . . . [.]"
(Reply Br. 3) (citing Spec. 3:7-11).
In response to Appellants' contentions, the Examiner stated:
[T]he claims do not require melt extrusion, or that
the wetting agent is added during the extrusion
process. The claims do not require elevated
temperatures, or uniform dispersion of the wetting
agent throughout the layer of meltblown fibers.
Nothing in the claims indicates that spray heads
may not be used for the internal wetting agent.
(Ans. 12-13). Appellants acknowledge that the claims do not specifically
include limitations of melt extrusion or elevated temperatures, but contend
that the claims "require meltblown fibers that comprise a blend of an
elastomeric polymer and an internal wetting agent." (Reply Br. 4). We
disagree. Claim 1 recites that "the at least one layer of meltblown fibers
comprises fibers that comprise a blend of an elastomeric polymer and an
internal wetting agent." This recitation requires that the layer of meltblown
fibers comprises fibers that comprise the blend, but it does not specify that
these "fibers" that comprise the blend must be "meltblown fibers." Claim 1

2 Appellants describe Ahcovel as a hydrogenated castor oil and sorbitan
monooleate blend. (App. Br. 4). Appellants' Specification discloses that
AHCOVEL Base N-62 is also referred to as "Ahcovel" (Spec. 19:22-23) and
describe AHCOVEL Base N-62 as including a blend of hydrogenated
ethoxylated castor oil and sorbitan monooleate. (Spec. 20:1-3).
Appeal 2010-002905
Application 11/018,768

6
only limits that these "fibers" "comprise a blend of an elastomeric polymer
and an internal wetting agent." Claim 1 thus does not require any fibers that
both are meltblown and comprise the blend of elastomeric polymer and
internal wetting agent.
Appellants further contend, "[i]n light of the specification, one skilled
in the art would reasonably conclude that the internal wetting agent is not
simply mixed in with already meltblown elastomeric polymer but rather
blended and meltblown with (i.e. 'internally') the elastomeric polymer."
(Reply Br. 4). However, this contention appears to be premised on claim 1
requiring meltblown fibers that comprise a blend of an elastomeric polymer
and an internal wetting agent. As discussed supra, claim 1 does not recite
this limitation.
Regarding the claim term "internal wetting agent," the Examiner
found Appellants' Specification does not define "internal." (Ans. 13). The
Examiner stated "Yahiaoui teaches saturating the fabric with the wetting
agent, and immersing the fabric in the wetting agent . . . . Yahiaoui certainly
does not teach away from having the wetting agent reach the interior of the
layer of meltblown fibers." (Ans. 13). In response, Appellants contend:
[T]he specification indicates a difference in
'internal' wetting agents versus topically applied
wetting agents. Indeed, one skilled in the art
appreciates that an internal wetting agent yields a
structure with more uniform dispersion of the
wetting agent than simple topical application.
(Reply Br. 3-4). This contention is not persuasive.
Claim 1 itself does not limit the scope of the term "internal wetting
agent." The Patent and Trademark Office gives claim limitations their
broadest reasonable interpretation consistent with the specification, reading
Appeal 2010-002905
Application 11/018,768

7
the claim language as it would be interpreted by one of ordinary skill in the
art. See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004). There are two exceptions to this general rule: namely, when the
Specification sets out a definition of a claim term, or when Appellants
disavow the full scope of the term. See Thorner v. Sony Computer Ent. Am.
LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). See also In re Paulsen, 30 F.3d
1475, 1480 (Fed. Cir. 1994) (An applicant is permitted to define specific
terms used to describe the invention by setting forth a definition for terms
with reasonable clarity, deliberateness and precision.); In re Bigio, 381 F.3d
1320, 1325 (Fed. Cir. 2004) ("Absent claim language carrying a narrow
meaning, the PTO should only limit the claim based on the specification or
prosecution history when those sources expressly disclaim the broader
definition.") To act as his own lexicographer, "[i]t is not enough for a
patentee to simply disclose a single embodiment or use a word in the same
manner in all embodiments, the patentee must 'clearly express an intent' to
redefine the term." See Thorner, 669 F.3d at 1365 (internal citations
omitted). Here, the Specification describes an "internal wetting agent."
Appellants have not, however, established that the Specification clearly
expresses an intent to define the term "internal," or that the Specification
provides an express disclaimer of a broad interpretation of the term that
precludes the Examiner's construction.
Claim 1 recites that the internal wetting agent comprises an
hydrogenated ethoxylated oil. The Examiner found Yahiaoui discloses the
use of Ahcovel, which, as noted supra, contains hydrogenated ethoxylated
oil, as claimed. Accordingly, claim 1 recites no limitation that distinguishes
Appeal 2010-002905
Application 11/018,768

8
the composition of the recited internal wetting agent from the wetting agent
disclosed by Yahiaoui.
Appellants further contend that Yahiaoui teaches away from an
internal wetting agent "as Yahiaoui discloses that the treating agents are to
be applied at room temperature." (App. Br. 7-8). Appellants contend that,
in contrast, they "claim an internal wetting agent that is added during the
extrusion process," and that one skilled in the art would know that melt
extrusion requires elevated temperatures. (App. Br. 8). As discussed supra,
however, claim 1 does not require that the fibers that comprise the internal
wetting agent are also meltblown fibers, or that the fibers are formed by melt
extrusion or elevated temperatures. Accordingly, this contention is not
persuasive.
Appellants also contend that the Examiner improperly used their
disclosure as a blueprint to reconstruct the claimed invention from isolated
teachings. (App. Br. 8-10). In response, the Examiner stated that the claims
are directed to a combination of elements that yields predictable results, and
Appellants have not provided any persuasive argument or evidence that the
combination advanced by the Examiner would have been uniquely
challenging to one of ordinary skill in the art. (Ans. 14). The Examiner also
stated that Yahiaoui teaches a bodyside liner that maintains desirable
wettability properties after multiple insults, which provides sufficient
motivation to combine Yahiaoui's nonwoven fabric composite with Tanzer's
bodyside liner. (Ans. 14). We find that the Examiner has articulated an
adequate reason with rational underpinnings to combine the teachings of
Tanzer and Yahiaoui to result in the claimed personal care product.
Accordingly, we do not find Appellants' contentions (see also Reply Br. 4-5)
Appeal 2010-002905
Application 11/018,768

9
persuasive. We sustain the rejection of claims 1, 3, 9, 10, 12, 14, 15, 23, 25,
32, and 33.
Claim 11 – Tanzer, Yahiaoui, and Abuto '743
Claim 11 depends from claim 1. Appellants contend that Abuto '743
fails to cure the deficiencies of Tanzer and Yahiaoui with respect to claim 1.
(App. Br. 10). As we find no deficiencies in the rejection of claim 1, as
discussed supra, we also sustain the rejection of claim 11 for similar
reasons.
Claims 13 and 29-31 – Tanzer, Yahiaoui, and Abuto '592
Claims 13 and 29-31 depend from claim 1. Appellants contend that
Abuto '592 fails to cure the deficiencies of Tanzer and Yahiaoui with respect
to claim 1. (App. Br. 10). Hence, we also sustain the rejection of claims 13
and 29-31 for similar reasons as those for claim 1.
Claim 24 – Tanzer, Yahiaoui, and Roessler
Claim 24 depends from claim 1. Appellants contend that Roessler
fails to cure the deficiencies of Tanzer and Yahiaoui. (App. Br. 10-11).
Hence, we also sustain the rejection of claim 24 for similar reasons as those
for claim 1.
Claims 26 and 27 – Tanzer, Yahiaoui, and Pike
Claims 26 and 27 depend from claim 1. Claim 26 recites that the
spunbonded fibers are crimped. The Examiner found Tanzer does not
expressly disclose this limitation. (Ans. 11). The Examiner found crimped
spunbonded fibers are well known in the art, as evidenced by Pike, and
concluded that it would have been obvious to modify Tanzer to include
crimped, spun bond fibers to reduce shrinkage and produce a uniform fabric,
as taught by Pike. (Ans. 11-12).
Appeal 2010-002905
Application 11/018,768

10
Appellants contend that Pike fails to provide any suggestion to one
skilled in the art to modify Tanzer to result in the claimed crimped,
spunbonded fibers. (App. Br. 11-12; Reply Br. 5-6). However, Appellants'
contentions do not persuasively address the Examiner's rationale for the
combination with respect to the desirable characteristics of Pike's crimped
nonwoven fabric found by the Examiner. Hence, we sustain the rejection of
claims 26 and 27.
DECISION
The Examiner's decision rejecting claims 1, 3, 9-15, 23-27, and 29-33
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)(1)(iv).
AFFIRMED

mls