Ex Parte Börmann et al

Patent Trial and Appeal Board

May 20, 2016

13013469 (P.T.A.B. May. 20, 2016)

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.
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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").
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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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
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"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.
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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'
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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,
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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.
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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