Ex Parte Brennan

Board of Patent Appeals and Interferences

Jul 30, 2007

09824454 (B.P.A.I. Jul. 30, 2007)

The opinion in support of the decision being entered today
is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JONATHAN PAUL BRENNAN
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Appeal 2006-2708
Application 09/824,454
Technology Center 1700
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Decided: July 30, 2007
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Before EDWARD C. KIMLIN, THOMAS A. WALTZ, and
CATHERINE Q. TIMM, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-5 and 8. Claim 1
is illustrative:
1. A multi-layer nonwoven web suitable for use as a wet wipe, the web
comprising:

(a) a first carded fibrous outer layer comprising from about 10% to
about 60% conjugate fiber, from about 20% to about 65%
cellulosic fibers;
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Application 09/824,454

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(b) a fibrous inner layer comprising from about 10% to about 60%
conjugate fiber, from about 10% to about 90% cellulosic fibers,
said inner layer bonded at discrete bond sites to said first outer
layer in a face to face relationship; and

(c) a second carded fibrous outer layer comprising from about 10%
to about 60% conjugate fiber, from about 20% to about 65%
cellulosic fibers, said second fibrous outer layer bonded at
discrete bond sites to said inner layer in a face to face
relationship.
The Examiner relies upon the following reference in the rejection of
the appealed claims:
Cohen US 5,505,719 Apr. 9, 1996
Appellant’s claimed invention is directed to a multi-layer nonwoven
web that is suitable for use as a wet wipe comprising a fibrous inner layer
that is bonded to first and second outer layers in a face-to-face relationship.
Appealed claims 1, 2, and 8 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Cohen. Claims 3-5 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Cohen.
We have thoroughly reviewed the respective positions advanced by
Appellant and the Examiner. In so doing, we concur with Appellant that the
Examiner has failed to make out a prima facie case of anticipation or
obviousness for the claimed subject matter. Accordingly, we will not sustain
the Examiner’s rejections.
The fatal flaw in the Examiner’s rejections is that Cohen fails to
describe an inner layer that is bonded in a face-to-face relationship with two
outer layers. Indeed, no one inner layer of Cohen is bonded to both of the
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Application 09/824,454

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outer layers. The absorbent structure of Cohen comprises a plurality of
distinct, planar regions between the outer layers (see a discussion of the
separate and distinct second and third layers at col. 6-7 of the reference).
Although the second and third layers of Cohen may comprise the same or
similar components, the fact remains that they are distinct in nature.
It is the Examiner’s position that “[t]he second and third layers, [of
Cohen] in combination, are analogous to the inner layer claimed by
Applicant” (Answer 3, last para.). However, whether there is an analogy
between Cohen’s second and third layers and the presently claimed inner
layer is of no moment. To sustain a rejection under 35 U.S.C. § 102 a
reference must provide an identical description of all the claimed features.
The Examiner submits that “[t]he present impasse raises a question of
semantics” (Answer 5, last para.). But no semantical analysis can result in
an inner layer of Cohen being bonded to both outer layers. Also, we find no
merit in the Examiner’s rationale that “’inner’ layer(s) are any and all layers
between ‘outer’ layers” (id.). We find no factual basis for interpreting the
presently claimed “inner layer” as comprising a plurality of layers, and the
Examiner has apprised us of none.
Also, while the Examiner cites the “comprising” language of the
appealed claims and states that “the preambular ‘multilayer’ structure,
encompasses structures with more than three layers” (Answer 6, second
para.), the claim nevertheless requires an inner layer to be bonded to both
outer layers.
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Application 09/824,454

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Since claims 3-5 are dependent upon claim 1 and include all the
limitations therein, it follows that the Examiner’s § 103 rejection of claims
3-5 must fall as well.
In conclusion, based on the foregoing, we are constrained to reverse
the Examiner’s rejections.
REVERSED

clj

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