Ex Parte Hada et al

Board of Patent Appeals and Interferences

May 20, 2009

11302744 (B.P.A.I. May. 20, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte FRANK S. HADA, ROBERT J. SEYMOUR and
MAREK PARSZEWSKI
____________

Appeal 2009-0834
Application 11/302,744
Technology Center 3700
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Decided1: May 20, 2009
____________

Before JAMESON LEE, RICHARD TORCZON and SALLY C. MEDLEY,
Administrative Patent Judges.

MEDLEY, Administrative Patent Judge.
DECISION ON APPEAL

1 The two month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

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A. STATEMENT OF THE CASE
Kimberly-Clark Worldwide Inc. (“Kimberly-Clark”), the real party in
interest, seeks review under 35 U.S.C. § 134(a) of a Final Rejection of
claims 1-13. We have jurisdiction under 35 U.S.C. § 6(b). We reverse.
References Relied on by the Examiner
Nelson 1,925,702 Sep. 5, 1933
Sisson 3,303,576 Feb. 14, 1967
Hemsath et al. (“Hemsath”) 4,693,015 Sep. 15, 1987
Bakalar 6,560,893 May 13, 2003
Hermans et al. (“Hermans”) 6,953,516 Oct. 11, 2005

Rejections on Appeal
The Examiner rejected claims 1 and 6 under 35 U.S.C. § 102(b) as
anticipated by Sisson.
The Examiner rejected the following claims as unpatentable under 35
U.S.C. § 103(a):
claims 2-5 over Sisson and Hemsath;
claims 7-9 over Sisson;
claims 10 and 11 over Sisson and Nelson; and
claims 12 and 13 over Sisson and Bakalar.
The Examiner rejected claims 1-13 on the grounds of obviousness-
type double patenting over Hermans.
Claims 1-13 stand or fall together. Br. 2, 3.
The Invention
Kimberly-Clark’s figure 3, reproduced below [numbers from figure 3
inserted], discloses a through-air dryer roll [30]. The dryer roll [30] has a
shell [32] and two opposing heads [34]. Spec: pp. 2-5. The claimed
invention relates to a method of warming up or cooling down the through-air
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dryer roll [30] by feeding airflow from fan [22] through one of the dryer
roll's heads [34] and extracting a majority of the airflow through the opposite
head [34]. Spec: pp. 2-5.
Kimberly-Clark’s figure 3 is below:

Figure 3 depicts a through-air dryer roll system.
Claim 1, reproduced from the Claim Appendix of the Appeal Brief, is as
follows:
A method comprising: warming up or cooling down a
through-air dryer roll having a shell_with an outer cylindrical
surface through which hot air passes and two opposing heads
comprising[:] feeding a majority of an airflow from a fan
through one of the through-air dryer roll's heads and extracting
a majority of the airflow through the opposite head.

B. ISSUES
1. Has Kimberly-Clark shown that the Examiner incorrectly found
Sisson’s inlet plenum and outlet duct to be “two opposing heads”?
2. Has Kimberly-Clark shown that the Examiner incorrectly found that
Hermans’ claims meet or suggest “feeding a majority of an airflow
from a fan through one of the through-air dryer roll’s heads and
extracting a majority of the airflow through the opposite head”?
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C. FINDINGS OF FACT (“FF”)
Kimberly-Clark’s Specification
1. Referring to Kimberly-Clark’s figure 3, reproduced above [numbers
from figure 3 inserted], Kimberly-Clark discloses a through-air dryer
roll [30] having a shell [32] (i.e., outer cylindrical surface of the dryer
roll) and two opposing heads [34] on opposite sides of the through-air
dryer roll [30]. Spec: p. 2, ll. 15-16, p. 3, ll. 9-22.
Sisson
2. Referring to Sisson’s figure 1, reproduced below [numbers from
figure 1 inserted], Sisson describes a two-stage air drying system for
removing moisture from a porous lightweight paper web [11] issued
from a paper making machine and transported through the air drying
system by a fabric carrier [16]. Col. 3, ll. 4-41.
Sisson’s figure 1 is below:

Figure 1 depicts a two-stage air drying system.
3. The paper web [11] is placed in contact with a freely rotatable sieve
roll [21] of the first stage of the two-stage air drying system. Col. 3,
ll. 38-48.
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4. Ambient air is drawn into the inlet of a fan [24], forced through heater
[25] and carried to inlet duct or plenum [26] and proceeds
substantially radially through the apertures in the periphery of roll
[21] into the interior of roll [21]. Col. 4, ll. 12-18, 62-65.
5. Referring to Sisson’s figure 3, reproduced below [numbers from
figure 3 inserted], Sisson describes that sieve roll [21] is closed at
each end by a circular substantially imperforate head [32]. Col. 5, ll.
39-47.
Sisson’s figure 3 is below:

Figure 3 depicts another view of the two-stage air drying system.
6. Sisson’s heads [32] are structurally similar to Kimberly-Clark’s
described heads [34].
Hermans
7. Referring to Hermans’ figure 1, reproduced below [numbers from
figure 1 inserted], Hermans describes a throughdryer [25] in the form
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of a drum that provides exhaust gas to an exhaust gas recovery
plenum [11] via an exhaust gas recycle stream [50]. Col. 5, ll. 9-23.
Hermans’ figure 1 is below:

Figure 1 depicts an air drying system.
8. The exhaust gas recovery plenum [11] and a vacuum box [10] utilize
the exhaust gas to dewater a paper web prior to the throughdrying step
(i.e., before the web reaches the throughdryer [25]). Col. 3, ll. 4-9;
col. 4, ll. 37-40.
9. Hermans’ claim 14, which includes the limitations of claim 13,
describes an exhaust gas recovery plenum and a vacuum box, each
having a plurality of independent gas passages.
D. PRINCIPLES OF LAW
Claim Interpretation
“[T]the PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary usage as they
would be understood by one of ordinary skill in the art, taking into account
whatever enlightenment by way of definitions or otherwise that may be
afforded by the written description contained in the applicant's
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specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). The
broadest reasonable interpretation “must be consistent with the one that
those skilled in the art would reach” and “should not be so broad that it
conflicts with the meaning given to identical terms in other patents from
analogous art.” In re Cortright, 165 F.3d 1353, 1358 (Fed. Cir. 1999).
Obviousness-Type Double Patenting
An obviousness-type double patenting analysis entails two steps.
First, the claims in the earlier patent and the claims in the later patent are
construed and the differences between the claims are determined. Second, it
is determined whether the differences in subject matter between the two
claims render the claims patentably distinct. Eli Lilly and Co. v. Barr
Laboratories, Inc., 251 F3d 955, 968 (Fed. Cir. 2001) (citations omitted).
“A later patent claim is not patentably distinct from an earlier patent claim if
the later claim is obvious over, or anticipated by, the earlier claim.” Id.
(citations omitted).
The determination of obviousness requires a suggestion of all
limitations in a claim. CFMT Inc. v. Yieldup Int’l Corp., 349 F.3d 1333,
1342 (Fed. Cir. 2003)(citing In re Royka, 490 F.2d 981, 985 (CCPA 1974)).
[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).
E. ANALYSIS
Anticipation of Claims 1 and 6
Independent claim 1 recites (disputed limitations in italics): “a
through-air dryer roll having a shell with an outer cylindrical surface . . . and
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two opposing heads” and “feeding . . . an airflow . . . through one of the
through-air dryer roll’s heads and extracting . . . the airflow through the
opposite head.” Br. 6.
The Examiner finds that the claim limitation “two opposing heads”
reads on Sisson’s inlet plenums [26], [26’] and outlet ducts [28], [28’]. Final
Rejection 2; Ans. 3. The Examiner further finds that the plain meaning,
consistent with Kimberly-Clark’s Specification, includes Sisson’s plenums
[26], [26’] and ducts [28], [28’] “because both form a head or inlet/outlet
end duct region.” Ans. 7.
Kimberly-Clark argues that the Examiner’s findings contradict
Sisson’s teaching of a sieve roll [21] closed at each end by a circular,
substantially imperforate head [32]. Br. 3, see also FF2 4.
During prosecution the broadest reasonable interpretation applies to
claim terms. Kimberly-Clark’s Specification provides enlightenment as to
the meaning of the term “heads”. According to the Specification, “heads” is
used to describe the surfaces that close the ends of the through-air dryer roll
[30]. FF 1. Sisson, the applied prior art, also utilizes the term “heads” to
describe the closure of the sieve roll [21] at each end. FF 5. We find that
Sisson’s heads are structurally similar to Kimberly-Clark’s described heads.
FF 6. In light of the meaning given to “heads” by Sisson and its use in
Kimberly-Clark’s Specification, one of ordinary skill in the art would
understand the term “heads” to mean the closures at the ends of the roll.
The broadest reasonable interpretation should not be so broad that it
conflicts with the meaning given to identical terms in other patents from
analogous art; it must still be reasonable. The Examiner’s interpretation

2 FF denotes Finding of Fact.
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conflicts with the meaning given to “heads” by Sisson. Specifically, one of
ordinary skill in the art would not understand the terms “heads” or “two
opposing heads” to mean Sisson’s inlet duct and outlet plenum, especially
since Sisson clearly describes that some other structural element constitutes
the “heads.” For these reasons, the Examiner’s finding that Sisson’s inlet
plenums [26], [26’] and outlet ducts [28], [28’] are “heads” or “two
opposing heads”, as recited in the claims, is not reasonable.
For all these reasons, the Examiner incorrectly found claims 1 and 6
anticipated by Sisson.
Obviousness of claims 2-5 and 7-13
Claims 2-5 and 7-13 are dependent on claim 1. The secondary
references as applied by the Examiner in the various rejections do not make
up for the deficiencies of Sisson. Therefore, we cannot sustain the
Examiner’s rejections of claims 2-5 and 7-13 as unpatentable over the
applied prior art.
Obviousness-Type Double Patenting
The Examiner finds that Kimberly-Clark’s claims 1-13 and Hermans’
patented claims 1-21 are not patentably distinct. Final Rejection 8; Ans. 6-7.
Final Rejection 8; Ans. 6. Kimberly-Clark disputes the Examiner’s finding
that Hermans meets the limitations of “feeding a majority of an airflow from
a fan through one of the through-air dryer roll’s heads and extracting a
majority of the airflow through the opposite head.” Br. 4.
The Examiner finds that the gas passages of Hermans’ claim 14 meet
the limitation of “two opposing heads” and that the vacuum box of claim 15
meets the “opposite head” limitation. Ans. 8.
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Hermans claim 14, which includes the limitations of claim 13 from
which it depends, recites an exhaust gas recovery plenum and a vacuum box,
each having a plurality of independent gas passages. FF 9. We understand
the Examiner to find Hermans’ exhaust gas recovery plenum with gas
passages and vacuum box with gas passages to meet the “heads” or “two
opposing heads” limitations.
Hermans describes a throughdryer [25] in the form of a drum (i.e., a
roll) that provides exhaust gas to an exhaust gas recovery plenum [11]. FF
7. The exhaust gas recovery plenum [11] and vacuum box [10] utilize the
exhaust gas to dewater the paper web prior to the throughdrying step (i.e.,
before it reaches the throughdryer [25]). FF 8.
As already explained above, one of ordinary skill in the art would
understand Kimberly-Clark’s claim term “heads” to mean the closures at the
ends of a roll, which is also consistent with record evidence (Sisson). As the
term is understood by one of ordinary skill in the art, the term “heads” would
refer to closed ends of Hermans’ throughdryer [25]. Hermans’ exhaust gas
recovery plenum with gas passages and vacuum box with gas passages are
not heads as that term is understood in the art, e.g., closures at the ends of a
roll. As such, Herman’s claims do not describe at least the heads claimed by
Kimberly-Clark. Moreover, and based on the record before us, the
Examiner has not articulated a reason to modify Herman’s claimed invention
to include the method steps of “feeding a majority of an airflow from a fan
through one of the through-air dryer roll's heads and extracting a majority of
the airflow through the opposite head.”
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For all these reasons, the Examiner erred in determining that claims 1-
13 are unpatentable on the ground of obviousness-type double patenting
over Hermans.
F. CONCLUSION
1. The Examiner incorrectly found Sisson’s inlet plenum and outlet duct
to be “two opposing heads”.
2. The Examiner incorrectly found that Hermans’ claims meet or suggest
“feeding a majority of an airflow from a fan through one of the
through-air dryer roll’s heads and extracting a majority of the airflow
through the opposite head”.
G. ORDER
The decision of the Examiner rejecting claims 1 and 6 under 35
U.S.C. § 102(b) as anticipated by Sisson is reversed.
The decision of the Examiner rejecting claims 2-5 as unpatentable
under 35 U.S.C. § 103(a) over Sisson and Hemsath is reversed.
The decision of the Examiner rejecting claims 7-9 as unpatentable
under 35 U.S.C. § 103(a) over Sisson is reversed.
The decision of the Examiner rejecting claims 10 and 11 as
unpatentable under 35 U.S.C. § 103(a) over Sisson and Nelson is reversed.
The decision of the Examiner rejecting claims 12 and 13 as
unpatentable under 35 U.S.C. § 103(a) over Sisson and Bakalar is reversed.
The decision of the Examiner rejecting claims 1-13 on the grounds of
obviousness-type double patenting over Hermans is reversed.
REVERSED

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ack

cc:

KIMBERLY-CLARK WORLDWIDE, INC.
Catherine E. Wolf
401 NORTH LAKE STREET
NEENAH, WI 54956