Ex Parte Börmann et alDownload PDFPatent Trial and Appeal BoardMay 20, 201613013469 (P.T.A.B. May. 20, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/013,469 01125/2011 12919 7590 05/23/2016 Paul D. Strain Strain & Strain PLLC Strain & Strain, PLLC 1455 Pennsylvania Ave NW, Suite 400 Washington, DC 20004 FIRST NAMED INVENTOR Ludwig Bormann 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. 999300-0113 8797 EXAMINER DODDS, SCOTT ART UNIT PAPER NUMBER 1746 MAILDATE DELIVERY MODE 05/23/2016 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 LUDWIG BORMANN and GUNTER SCHREINER Appeal2014-000449 Application 13/013,469 1 Technology Center 1700 Heard: February 29, 20162 Before JAMES C. HOUSEL, N. WHITNEY WILSON, and CHRISTOPHER L. OGDEN, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL 3 1 According to Appellants, the real party in interest is The RKW-Group. Appeal Br. 1. 2 The record includes a transcript of the oral hearing. 3 Our decision refers to the Specification as published in US 2012/0034436 Al on February 9, 2012, Appellants' Appeal Brief (Appeal Br.) filed June 10, 2013, the Examiner's Answer (Ans.) mailed August 2, 2013, and Appellants' Reply Brief (Reply Br.) filed October 2, 2013. Appeal2014-000449 Application 13/013,469 Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the Examiner's decision finally rejecting claims 12-20.4 We have jurisdiction over the appeal under 35 U.S.C. § 6(b ). We AFFIRM. STATEMENT OF THE CASE The invention relates to a method for the production of nonwoven- film laminates for use in personal hygiene articles such as diapers. Spec. p. 1, 11. 1-8. Sole independent claim 1, reproduced below from the Claims Appendix of Appellants' Appeal Brief, is illustrative of the subject matter on appeal. Limitations at issue are italicized. 12. A method for the production of nonwoven-film laminates for personal hygiene articles consisting of a film web made of a thermoplastic polymer and a nonwoven web, the method comprising: a) providing a film web made of a thermoplastic polymer; b) providing a non woven web, wherein the nonwoven web has a melting point in excess of the crystallite melting point of the thermoplastic polymer; c) jointly heating the film web and the nonwoven web to a temperature above the crystallite melting point of the thermoplastic polymer and below the melting point of the nonwoven web, in order to heat the film web to a molten state and form the nonwoven-film laminate; and d) guiding the nonwoven-film laminate through a cooled nip in order to cool the nonwovenfilm laminate below the crystallite melting point of the film web, wherein the heating comprises heating the film web and the nonwoven web with a heating cylinder and further heating the film web and the nonwoven web with another heating method so that the film web is heated to the molten state. 4 Claims 21-28 are also pending, but have been withdrawn from consideration and are not before us on appeal. 2 Appeal2014-000449 Application 13/013,469 The Examiner maintained the following grounds of rejection under 35 U.S.C. § 103(a): 1. Claims 12-14 and 20 as unpatentable over Srinivasan5 in view of Wiegand 6 and either Stolki7 or Suzuki; 8 2. Claim 15 as unpatentable over the combination of Srinivasan, Wiegand and either of Stolki and Suzuki, further in view of Bormann9 and Brandts; 10 3. Claims 16 and 19 as unpatentable over the combination of Srinivasan, Wiegand and either of Stolki and Suzuki, further in view ofWu· 11 ' 4. Claim 17 as unpatentable over the combination of Srinivasan, Wiegand and either of Stolki and Suzuki, further in view of Bontinck12 and AAP A· 13 and ' 5. Claim 18 as unpatentable over the combination of Srinivasan, Wiegand and either of Stoiki and Suzuki, further in view of Konkol. 14 We sustain the above rejections based on the findings of fact, conclusions of law, and rebuttals to arguments well expressed by the 5 Srinivasan et al., US 5,656,119, issued August 12, 1997 ("Srinivasan"). 6 Wiegand, US 4,088,805, issued May 9, 1978 ("Wiegand"). 7 Stolki, US 3,627,613, issued December 14, 1971 ("Stolki"). 8 Suzuki et al., US 5,571,364, issued November 5, 1996 ("Suzuki"). 9 Bormann, EP 0 768 168 A2, published April 16, 1997 ("Bormann"). 10 Brandts et al., US 3,639,199, issued February 1, 1972 ("Brandts"). 11 Wu et al., US 5,865,926, issued February 2, 1999 ("Wu"). 12 Bontinck et al., US 4.367,312, issued January 4, 1983 ("Bontinck"). 13 Appellants' Admitted Prior Art, Specification, i-f [0021] ("AAP A"). 14 Konkol et al., US 5,735,549, issued April 7, 1998 ("Konkol"). 3 Appeal2014-000449 Application 13/013,469 Examiner in the Final Office Action and the Answer. The following comments are added for emphasis. Appellants present separate arguments for each of the claims on appeal except for grouping claim 20 with claim 12, and claim 14 with claim 13. However, Appellants fail to present a separate argument for claim 18. Therefore, claim 18 will stand or fall with claim 12 from which it depends. Further, claim 19 is argued together with claim 16. Appeal Br. 27-29. As such, claims 16 and 19 stand or fall together. For purposes of this appeal, to the extent that the claims on appeal are separately argued, we will address them separately consistent with 37 C.F.R. § 41.37(c)(l)(vii). ANALYSIS Claim 12 The Examiner found Srinivasan teaches a method for the production of nonwoven-film laminates for personal hygiene articles consisting of a precursor thermoplastic film web and a nonwoven web whose melting point is above the crystallite melting point of the thermoplastic film web, the method comprising jointly heating the webs using heating cylinders to a temperature above the crystallite melting point to melt the film web, but below the nonwoven web melting point. Ans. 6. However, while finding Srinivasan is silent on a specific cooling process, the Examiner found "it is conventional to guide a web material through a cooled nip after heating in order to ensure rapid cooling of the laminate to set the bond." Id. In support of this finding, the Examiner found Wiegand teaches passing a web through a cooling nip directly following passage through heating cylinders. Ans. 7. 4 Appeal2014-000449 Application 13/013,469 In addition, while finding Srinivasan fails to teach heating the film with another heating method besides the heating cylinders, the Examiner found "it is well-known and conventional to preheat, via infrared heating, webs to be joined by heating cylinders." Ans. 7. In support of this finding, the Examiner found both Suzuki and Stolki teach the use of infrared heating to preheat webs to be joined between heating cylinders. Id. The Examiner concluded it would have been obvious to heat Srinivasan's webs via infrared heat prior to joining via the heating cylinders because doing so would have predictably preheated the webs, ensuring the webs are heated sufficiently for joining when passing through the heating cylinders. Id. Appellants initially argue that the Examiner has already acknowledged that this application discloses allowable subject matter over the applied prior art. Appeal Br. 5-7. This argument fails to persuade of reversible error in the obviousness rejection against claim 12. The Examiner found, and AppeUants do not dispute, that claim 12 is not identical in limitations or scope with the previously allowed claims. Compare Ans. 10 with Appeal Br. 5. Appellants urge that the reasons for allowance provided by the Examiner in the parent application primarily is directed to common limitations between the allowed parent claim and claim 12 before us on appeal. Appeal Br. 7. However, Appellants acknowledge that the Examiner's reasons for allowance of the parent claim includes features which are not present in claim 12. Id. In addition, while Appellants merely state there is disagreement with the Examiner on the significance of these additional features (id.), the Examiner explained why the features that are present in the parent claim but not claim 12 yield a different patentability 5 Appeal2014-000449 Application 13/013,469 decision over the applied prior art (Ans. 10-11). Appellants do not rebut or otherwise persuasively address the Examiner's explanation. Appellants next argue that Srinivasan's disclosure is limited to thermobonding which is distinct from the heating steps of claim 12. Appeal Br. 8-9; Reply Br. 2. In particular, Appellants assert that Srinivasan's thermobonding method results in thermal spot bonding utilizing discrete "calendaring points" applying heat and pressure. Appeal Br. 10-11. Appellants note that Srinivasan's method both spot bonds and apertures the laminates as shown in Figures 1 a-1 d. Appeal Br. 13. Appellants urge that Appellants' method claims do not result in spot bonding and aperturing of the product. Appeal Br. 14; Reply Br. 4. Appellants argue that the step of melting the film in claim 12 means melting the entire film, not merely spot bonding. Id. In addition, Appellants contend that claim 12 expressly excludes applying pressure during the heating process, by virtue of the method's reiiance on melting, whereas Srinivasan's process reiies on softening, which requires pressure for bonding. Appeal Br. 14--15. Finally, Appellants argue that Srinivasan's process has no need for a cooling nip because, as soon as the pressure is released, the bonding is complete and needs no cooling. Appeal Br. 15; Reply Br. 6. We do not find these arguments persuasive of reversible error in the Examiner's obviousness rejection of claim 12. Contrary to Appellants' arguments, claim 12 neither explicitly nor implicitly excludes applying pressure during the heating process. Appellants do not direct our attention to any language in claim 12 that expressly excludes applying pressure. In addition, Appellants do not direct our attention to any language in claim 12 that expressly or implicitly excludes aperturing the product as in Srinivasan. 6 Appeal2014-000449 Application 13/013,469 In this regard, we note that Srinivasan's product is disclosed for use in personal hygiene articles just as taught by Appellants. As to the step of melting the film in claim 12, we note that during examination, claims are given their broadest reasonable interpretation consistent with the specification. In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). In general, words used in a claim are accorded their ordinary and customary meaning, unless such meaning is inconsistent with the specification. Honeywell Int 'l Inc. v. Universal Avionics Sys. Corp., 488 F.3d 982, 992 (Fed. Cir. 2007). However, limitations from the specification must not be read into the claims. Sjolund v. Musland, 847 F.2d 1573, 1581 (Fed. Cir. 1988) ("[W]hile it is true that claims are to be interpreted in light of the specification and with a view to ascertaining the invention, it does not follow that limitations from the specification may be read into the claims."); see also In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004) ("We have cautioned against reading limitations into a claim from the preferred embodiment described in the specification, even if it is the only embodiment described, absent clear disclaimer in the specification.") Here, claim 12 recites in step c, "in order to heat the film web to a molten state," and in the "wherein" clause, "so that the film web is heated to the molten state." We note that claim 12 does not expressly recite that the entire film web is heated to the molten state. Appellants direct our attention to Figure 1 which depicts the apparatus Appellants use to accomplish the method for producing the laminate and to the Specification, paragraph 49, which describes the process. Appeal Br. 10-11. Therein, the process is described where the webs are deflected onto a heating cylinder such that the 7 Appeal2014-000449 Application 13/013,469 nonwoven web is bearing on the cylinder. Spec. i-f 49. There, the two webs are disclosed to be jointly heated to a temperature above the melting point of the film web but below the melting point of the non woven web. Id. These disclosures do not explicitly limit the heating to the entire web, though it might be said they support that the entire web may be heated in this way. However, these disclosures do not exclude heating of less than the entire web. Indeed, we note that Appellants disclose that the film web may include at least one component that has a melting point above that of a low melting point component of the film web. See Spec. i-f 30. This embodiment provides that only a portion of the film web is melted, i.e. only the low melting point component. Thus, we find Appellants' Specification does not limit the step of heating the film web to a molten state to a step in which the entire film web is in the molten state. Appellants attempt to distinguish between point heating provided by stamping roiiers appiying pressure which is described as thermobonding and the disclosed invention. See Spec. i-fi-1 9, 16 and 3 7. Appellants direct attention to Specification paragraph 3 7 which discloses that, "[ c ]ontrary to known thermobonding lamination methods wherein ... the composite is created through temperature and very high pressures in a localized manner only, the thermal lamination method according to the invention provides full-surface lamination." Reply Br. 3. However, "the name of the game is the claim." In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998). The claims before us do not recite those features, including thermal lamination involving heating over the entire film web without pressure, which Appellants argue would distinguish over Srinivasan's process. In re Self, 671 F.2d 1344, 1348 (CCPA 1982) ("Many of appellant's arguments fail 8 Appeal2014-000449 Application 13/013,469 from the outset because, as the solicitor has pointed out, they are not based on limitations appearing in the claims.") The Examiner found that though Srinivasan only melts the film web at discrete points, the melted points are still part of the film web. Ans. 12. While Appellants attempt to characterize Srinivasan's process as merely "softening" the film web which therefore requires pressure to bond to the nonwoven web, Appellants fail to support this characterization. In fact, Srinivasan specifically refers to melting of the polymeric material of the film web to bond to the nonwoven web. Srinivasan, col. 2, 11. 4--5. As such, we find Srinivasan's film web is heated to the molten state just as claim 12 requires. We next tum to Appellants final argument that Srinivasan's process has no need for a cooling nip because, as soon as the pressure is released, the bonding is complete and needs no cooling. We do not find this argument persuasive. As the Examiner notes, one cannot show nonobviousness by attacking reference individuaUy where the obviousness rejection is based on a combination of references, citing In re Keller, 642 F.2d 413 (CCPA 1981) and In re Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986). "Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art." Keller, 642 F.2d at 425. The Examiner relied on Wiegand for support of the use of a cooling nip and provided a reason for such use in Srinivasan, i.e. to ensure rapid cooling of the laminate to set the bond. Appellants do not provide any persuasive reasoning or evidence that providing a cooling nip in Srinivasan would not be useful to rapidly cool the laminate and set the bond. In their Reply Brief, Appellants present a new argument not raised in the Appeal Brief concerning the use of a cooling and embossing nip in a 9 Appeal2014-000449 Application 13/013,469 thennobonding process such as Srinivasan (apparently in reference to claim 15). Reply Br. 6. In particular, Appellants argue that regions of Srinivasan's laminate material that do not take part in the spot bonding would be relatively cool such that one of ordinary skill in the art would have expected cooling and embossing Srinivasan's laminate would have little or no effect on these regions. Id. Under regulations governing appeals to the Board, any new argument not timely presented in the Appeal Brief will not be considered when filed in a Reply Brief, absent a showing of good cause explaining why the argument could not have been presented in the Appeal Brief. See 37 C.F.R. §§ 41.37(c)(l)(iv) and 41.41(b)(2); Exparte Nakashima, 93 USPQ2d 1834 (BPAI 2010) (informative) (explaining that arguments and evidence not timely presented in the principal Brief will not be considered when filed in a Reply Brief, absent a showing of good cause explaining why the argument could not have been presented in the Principal Brief); E'xparte Borden, 93 USPQ2d 1473, 1477 (BPAI 2010) (informative) ("Properly interpreted, the Rules do not require the Board to take up a belated argument that has not been addressed by the Examiner, absent a showing of good cause."). See also In re Hyatt, 211F.3d1367, 1373 (Fed. Cir. 2000) (noting that an argument not first raised in the brief to the Board is waived on appeal). Appellants have provided this record with no such showing. Accordingly, we will not consider this new argument. Appellants next argue that, under the principle of claim differentiation, the limitation of claim 20 requires that thermobonding is expressly excluded from claim 12. Appeal Br. 16. Claim 20 requires that the nonwoven web is in direct contact with the heating cylinder. Under claim differentiation, Appellants urge that claim 12 should not be construed 10 Appeal2014-000449 Application 13/013,469 as requiring this limitation of claim 20. Id. Yet, according to Appellants, because thermoforming includes two opposing cylinders, both the nonwoven web and the film web would be in direct contact with a cylinder. Appeal Br. 17. Under such a construction, Appellants urge that claim 20 would not further limit the scope of claim 12. Id. This argument is not persuasive of reversible error because Appellants misapply the claim differentiation principle to claims 12 and 20. Claim differentiation does not mean that a limitation of a dependent claim cannot be included in the scope of the claim from which it depends. Instead, claim differentiation merely means that the scope of the independent claim must not be read so as to be limited solely to include the limitations of the dependent claim. Thus, the proper application of claim differentiation means that claim 12 must not be read to require that the nonwoven web is in direct contact with the heating cylinder, but more broadly in scope to include such an arrangement as wen as the possibiiity that the nonwoven web is not in direct contact with the heating cylinder. As such, Appellants' argument that claim differentiation requires a construction of claim 12 that excludes thermobonding is without merit. It follows that Appellants have not identified reversible error in the Examiner's obviousness rejection of claims 12 and 20. Therefore, we will sustain the§ 103 rejection of claims 12 and 20. Claims 13 and 14 Claim 13 depends from claim 12 and further requires that the other heating method comprises radiant heat. Claim 14 depends from claim 12 and further requires that the other heating method comprises heating with an infrared radiator. Appellants assert that there is no need in Srinivasan's 11 Appeal2014-000449 Application 13/013,469 thennobonding method to ensure the webs are heated sufficiently when passing through the heating cylinders. As such, Appellants contend that the Examiner's reason for modifying Srinivasan's process to include an additional heating method, i.e., infrared heaters, does not apply. We disagree. Appellants provide no persuasive reasoning or evidence in support of their assertion that there is no need to ensure Srinivasan's webs are sufficiently heated when passing through the heating cylinders. As the Examiner found, Srinivasan melts the film web, albeit at discrete points. One of ordinary skill in the art would have understood that pre-heating the film web would have facilitated such melting. See KSR Intern. Co. v. Teleflex Inc., 550 U.S. 398, 401 (2007) ("[I]f a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill."). We further find sufficient support in each of Suzuki and Stoiki for the teaching of infrared heating for pre-heating webs before being bonding between heating cylinders was known to those of ordinary skill in the art. Appellants do not contend that use of such infrared preheating was beyond the ordinary skill in the art. Accordingly, we will sustain the Examiner's obviousness rejection against claims 13 and 14. Claim 15 Claim 15 depends from claim 12 and further requires the cooled hip is formed by a stamping and rubber roller, wherein the embossed texture of the stamping roller reduces the degree of gloss of the laminate. The Examiner found that Srinivasan, Wiegand, Stolki, and Suzuki fail to teach that the 12 Appeal2014-000449 Application 13/013,469 cooling nip has a stamping roller to emboss the laminate. Ans. 8. However, the Examiner found that Bormann teaches a structured stamping roller providing an embossed surface that is intrinsically less glossy. Id. The Examiner concluded it would have been obvious to emboss the surface of the laminate while it passes through the cooling nip of Srinivasan modified by Wiegand to produce an embossed, less glossy surface on the laminate. Id. Appellants contend that Bormann does not disclose the lamination of a nonwoven web, but rather teaches the use of a roll nip to obtain a structured surface for film webs. 15 Appeal Br. 25. As such, Appellants argue Bormann's teaching is limited to film webs and would not suggest use of a roll nip to obtain structured surfaces for other materials including laminates. Id. Appellants assert that one of ordinary skill in the art, when considering Bormann, would not have concluded that it was known in the art to utiiize a structured roiier within a cooiing nip in order to emboss a recently heated material. Id. However, as the Examiner responded, Appellants' argument fails to take account not only of the specific teachings of Bormann, but the reasonable inferences one skilled in the art would draw therefrom. In KSR Int'! v. Teleflex Inc., 550 U.S. 398, 418 (2007), the Court emphasized that 15 Appellants also repeat their argument that Srinivasan's process does not require cooling by utilizing a cooling nip. Appeal Br. 22. We previously held this argument non-persuasive of reversible error and will not repeat our reasons here. Moreover, Appellants urge that the Examiner fails to cite evidentiary support commensurate in scope with the evidentiary assertion in this rejection. Appeal Br. 24. As the Examiner has cited to Bormann in support of the evidentiary assertion, this argument is without merit. 13 Appeal2014-000449 Application 13/013,469 "the [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." We agree with the Examiner that one of ordinary skill in the art would have understood from Bormann that a variety of web materials may be embossed. Appellants have not established any persuasive reasoning or evidentiary basis for limiting the application of Bormann's embossing teaching solely to the materials disclosed therein. Appellants also argue that use of Brandts' rubber roller would render Srinivasan's thermobonding process inoperable. 16 Reply Br. 5. In particular, Appellants urge that a rubber roll cannot be used inside the nip in Srinivasan because it would provide insufficient pressure to successfully thermobond the webs together. Id. Appellants note that Brandts cautions that care should be taken that the film is not molten as required in the claimed process. Id. Appeiiants further argue that Brandts' rubber roH is designed for adhesive bonding which one of ordinary skill in the art would not combine with Srinivasan's thermobonding. Id. Appellants' arguments are not persuasive of reversible error. In particular, Appellants' arguments fail to address the basis of the Examiner's 16 Appellants argue that the Examiner's Final Office Action did not contain an explanation as to how Brandts was applied in the rejection. Appeal Br. 23. The Examiner acknowledged this error and provided an explanation of Brandts in the Answer. Ans. 16-17. Appellants address the Examiner's application of Brandts in the Reply Brief. Reply Br. 5. Although the Examiner's explanation of Brandts in the Answer was procedurally late, as the Examiner acknowledged, Appellants had and took the opportunity to rebut this explanation. Accordingly, we find the Examiner's delay in explaining Brandts does not rise to harmful error. 14 Appeal2014-000449 Application 13/013,469 reliance on Brandts of providing a resilient or rubber roller in the cooling nip of Srinivasan as modified by Wiegand. Although Appellants urge that the roller would not provide sufficient pressure to successfully thermobond, we note that Srinivasan's process already includes heating rollers that provide sufficient heat and pressure to successfully thermobond the webs together. The Examiner's reliance on Wiegand was to establish that the use of a cooling nip downstream from the heating rollers would have been obvious to rapidly cool the webs to set the bond. Appellants fail to direct our attention to any evidence in the record, or provide persuasive scientific reasoning, that the use of a resilient or rubber roller as taught in Brandts would be incapable of providing sufficient pressure to set a thermo bond. With regard to Appellants' argument that Brandts cautions that care should be taken that the film is not molten as required in the claimed process, we find little support in Brandts for this argument. Indeed, the portion of Brandts Appeiiants refer to in support of this argument is directed to a flame lamination technique, where care should be taken that only the surface of the film is heated to melting by direct contact with a flame to avoid heavy shrinkage. Brandts, col. 4, 11. 26-38. This is not relevant to Srinivasan's process which provides shrinkage of the heated portions of the film. With regard to Appellants' argument that Brandts is designed for adhesive bonding rather than thermobonding, such is not supported in the record. Brandts specifically teaches that two webs, one of which having a lower melting point than the other such that the film of lower melting point is softened and serves as the adhesive to bond the webs together. See Brandts, col. 4, 1. 66 to col. 5, 1. 15. As such, contrary to Appellants' 15 Appeal2014-000449 Application 13/013,469 argument, Brandts is directed to the same field of endeavor, i.e. melt bonding of two webs together, as Srinivasan. Accordingly, we will sustain the Examiner's obviousness rejection of claim 15. Claims 16 and 19 Claim 16 depends from claim 12, and further requires that the cooled laminate is subjected to a stretching step, either in the machine direction, the crossways direction, or both. Claim 19 depends from claim 12, and further requires that the film web is stretched, either in the machine direction, the crossways direction, or both. The Examiner found that although Srinivasan, as modified in view of Wiegan, Stolki, and Suzuki, fails to teach stretching the laminate, it was conventional in the art to stretch laminated nonwovens in order to give exceiient breathabiiity and superior bond strength as taught by Wu. Ans. 9. Appellants contend that Wu discloses two methods of making laminates, both of which are distinct from the claimed method. Appeal Br. 28. Appellants assert that Wu teaches direct extrusion and adhesive lamination. Id. Appellants' argument is not persuasive. The Examiner found it would have been obvious to one of ordinary skill in the art that Wu's stretching would predictably have a similar effect on any nonwoven regardless of the method of lamination. Ans. 19. Appellants fail to direct our attention to any evidence in the record, or provide persuasive scientific reasoning, that the stretching disclosed in Wu would not apply to Srinivasan's laminate. We note Wu's description includes post-lamination stretching of a laminate, 16 Appeal2014-000449 Application 13/013,469 without regard to the lamination process. See Wu, col. 3, 11. 2-8; claim 1. Thus, one of ordinary skill in the art would recognize that post-lamination stretching in Srinivasan would improve the laminate in the same manner Wu discloses, i.e., improve breathability and bond strength. See KSR Intern. Co. v. Teleflex Inc., 550 U.S. 398, 401 (2007) ("[I]f a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill."). We, therefore, will sustain the Examiner's obviousness rejection of claims 16 and 19. Claim 17 Claim 17 depends from claim 12, and further requires that the film web is blow-extruded. The Examiner found blow extrusion to be a conventionai method for producing fiims having desired physicai properties, citing Bontinck and AAP A in support thereof. Ans. 9. Appellants contend the Examiner failed to articulate a prima facie case of obviousness. Appeal Br. 30. In particular, Appellants argue that the Examiner's position fails to explain "why a skilled artisan would have selected blown film extrusion or which 'desired film qualities' are sought." Id. As such, Appellants argue the Examiner's position is merely an assertion that all allegedly known methods of producing film would have been obvious in combination with Srinivasan. Id. Again, Appellants' argument fails to persuade us of reversible error in the Examiner's obviousness rejection. The Examiner found that Srinivasan teaches a thermoplastic film that must have been produced in some way. 17 Appeal2014-000449 Application 13/013,469 Ans. 19. Therefore, the Examiner determined that it would have been obvious for one of ordinary skill in the art to have produced Srinivasan's thermoplastic film by any well-known method of making films, including blow extrusion as taught by Bontinck. Id. We agree. Where a reference is silent as to how a particular element was made, such silence generally supports a finding that manufacture of the element was within the ordinary skill in the art. Further, any manufacturing process for the element known to those of ordinary skill in the art would have been obvious absent a showing of unpredictability or unexpected results. Here, it is undisputed that Srinivasan is silent as to how the thermoplastic film was made. Further, the Examiner has established an evidentiary basis for the finding that blow extrusion was a known method of making thermoplastic films, citing Bontinck and AAP A. Finally, we note that Appellants do not proffer any argument or evidence that the use of blow extrusion in producing thermopiastic fiims was unpredictabie or produced any unexpected result. Therefore, we are satisfied that the Examiner has articulated reasoning with sufficient rational underpinning to support the prima facie case of obviousness. Accordingly, we will sustain the Examiner's obviousness rejection of claim 17. 18 Appeal2014-000449 Application 13/013,469 DECISION Upon consideration of the record, and for the reasons given above and in the Answer, the decision of the Examiner rejecting claims 12-20 under 35 U.S.C. § 103(a) is affirmed. No time period for taking any subsequent action in connection with this appeal maybe extended under 37 C.F.R. § 1.136(a)(l). AFFIRMED 19 Copy with citationCopy as parenthetical citation