11413546 (B.P.A.I. Dec. 17, 2010)

Ex Parte Collias et al

Board of Patent Appeals and InterferencesDec 17, 2010

11413546 (B.P.A.I. Dec. 17, 2010)

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. 11/413,546 04/28/2006 Dimitris Ioannis Collias 10388 3081 27752 7590 12/17/2010 THE PROCTER & GAMBLE COMPANY Global Legal Department - IP Sycamore Building - 4th Floor 299 East Sixth Street CINCINNATI, OH 45202 EXAMINER MATZEK, MATTHEW D ART UNIT PAPER NUMBER 1786 MAIL DATE DELIVERY MODE 12/17/2010 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 BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte DIMITRIS IOANNIS COLLIAS, NORMAN SCOTT BROYLES, TERRILL ALAN YOUNG, and SUSAN L. WILKING ________________ Appeal 2010-005938 Application 11/413,546 Technology Center 1700 ________________ EDWARD C. KIMLIN, BRADLEY R. GARRIS, and CHARLES F. WARREN, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. Â§ 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. Â§ 41.52, begins to run from the "MAIL DATE" (paper delivery mode) or the "NOTIFICATION DATE" (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2010-005938 Application 11/413,546 2 Appellants appeal under 35 U.S.C. Â§ 134 from the Examiner's decision rejecting claims 1-8. We have jurisdiction under 35 U.S.C. Â§ 6. We AFFIRM. Appellants claim an expanded polymeric web comprising nanoparticles (claim 1). Further details regarding this claimed subject matter are set forth in representative claim 1 which reads as follows: 1. A product comprising an expanded polymeric web, the expanded polymeric web comprising: a) between about 0.1 and about 70 weight percent, of a compound comprising nanoparticles, b) between about 30 and about 99.9 weight percent of a generally melt processable polymer, and c) between about 0.0 and about 50 weight percent of a compatibilizer. The rejections set forth below are before us in this appeal. Claims 1, 2, and 6-8 are rejected under 35 U.S.C. Â§ 102(b) as anticipated by Brady (US 2003/0168776 A1, published September 2003). Claims 3-5 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Brady in view of Lavash (US Patent 5,389,094, issued February 1995). Finally, all appealed claims are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as unpatentable over the claims of copending applications 11/413,542, 11/413,770, and 11/434,371. We summarily sustain the provisional rejections based on obviousness-type double patenting since they have not been contested by Appellants in this appeal (Br. 4). Appeal 2010-005938 Application 11/413,546 3 We also sustain the Â§ 102 and Â§ 103 rejections for the reasons well stated in the Answer. We add the following comments for emphasis. Concerning the Â§ 102 rejection, Appellants acknowledge that Brady discloses an expanded polymeric web comprising particles having a dimension as low as 500 nm but argue that the claim 1 term "nanoparticles" is limited to a dimension between 1 and 9 nm on the grounds that they have defined "nanoparticles as having at least one dimension in the nanometer (singular) not several hundreds of nanometers (plural) range" (Br. 2-3). Appellants do not identify the Specification disclosure which defines "nanoparticles" in the manner asserted above. Further, Appellants proffer no evidence that one with ordinary skill in this art, having read their Specification, would interpret the claim 1 term "nanoparticles" as limited to a dimension between 1 and 9 nm. For these reasons and the reasons expressed in the Answer, we find Appellants' argument to be unpersuasive. We are also unpersuaded by Appellants' argument that a web expanded by hydroformation or vacuum formation as recited in claims 6-8 differs from the web of Brady which is expanded by ring-rolling (Br. 3). This argument is refuted by the Specification which expressly teaches that Appellants' web can be expanded by "hydroformation, vacuum formation, and other film expansion methods as are known in the art" (Spec. 4:22-23). Brady evinces that ring-rolling is a film expansion method known in the art. More significantly, the Specification explicitly teaches that Appellants' web may be expanded by ring-rolling (Spec. 8:14-15, 12:4-5). Appellants offer no other arguments concerning the rejected claims, including separately rejected claims 3-5 (Br. 4). Appeal 2010-005938 Application 11/413,546 4 The decision of the Examiner is affirmed. AFFIRMED bar THE PROCTER & GAMBLE COMPANY GLOBAL LEGAL DEPARTMENT - IP SYCAMORE BUILDING - 4TH FLOOR 299 EAST SIXTH STREET CINCINNATI, OH 45202