Ex Parte Hammons et al

Patent Trial and Appeal Board

Feb 11, 2016

11880931 (P.T.A.B. Feb. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111880,931 0712512007
27752 7590 02/16/2016
THE PROCTER & GAMBLE COMPANY
Global Patent Services - Legal IP
Central Building, CS
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
John Lee Hammons
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.
10840Q 8714
EXAMINER
HANRAHAN, BENEDICT L
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
02/16/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
centraldocket.im @pg.com
pair_pg@firsttofile.com
mayer.jk@pg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN LEE HAMMONS, SYBILLE FUCHS,
JODY LYNN HOYING, TIMOTHY IAN MULLANE,
CASANDRE MAFFETT WALSH,
PHILIP ANDREW SA WIN, DONNA MARIE CAUDILL, and
NAOMI RUTH NELSON
Appeal2013-010229
Application 11/880,931
Technology Center 3700
Before LYNNE H. BROWNE, JAMES J. MAYBERRY, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
MAYBERRY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
John Lee Hammons et al. (Appellants) seek our review under
35 U.S.C. § 134 of the Examiner's rejections of claims 1-20. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal2013-010229
Application 11/880,931
CLAIMED SUBJECT MATTER
The claims are directed to a topsheet for an absorbent article. Spec.
1 :4. Claims 1 and 11 are independent. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. An absorbent article comprising
a topsheet comprising a lotion zone, said top sheet having
a longitudinal centerline and a transverse centerline, said
topsheet having an area;
wherein said lotion zone has a periphery, a length, and a
long axis, said length being a maximum straight-line dimension
between two points on said periphery, said long axis extending
between two points on said periphery separated by said length;
wherein said periphery is not symmetric about an axis
parallel to said longitudinal centerline;
wherein said periphery of said lotion zone is asymmetric
to said longitudinal centerline and said transverse centerline;
wherein said lotion zone comprises more than about 5%
of said area of said top sheet; and
wherein said lotion zone comprises a lotion.
Br. 6, Claims App.
REJECTIONS
I. Claims 1-5, 7, 9, and 11-20 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Noel (US 2006/0184150 Al, published
Aug. 17, 2006) and Maeyama (JP2005-278885 A, published Oct. 13, 2005).
II. Claim 6 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Noel, Maeyama, and Roe (US 6,498,284 Bl, issued Dec.
24, 2002).
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Application 11/880,931
Ill. Claims 8 and 10 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Noel, Maeyama, and Christon (US 2003/0114811
Al, published June 19, 2003).
ANALYSIS
Rejection I
Appellants argue claims 1-5, 7, 9, and 11-20 as a group. Br. 3--4.
We select claim 1 as representative of this group and claims 2-5, 7, 9, and
11-20 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv) (2015).
Claim 1 recites, in relevant part, "a top sheet comprising a lotion zone,
said top sheet having a longitudinal centerline and a transverse centerline,
said topsheet having an area; wherein said lotion zone has a periphery." Br.
6, Claims App. As to the periphery of the lotion zone, claim 1 further recites
"wherein said periphery is not symmetric about an axis parallel to said
longitudinal centerline; [and] wherein said periphery of said lotion zone is
asymmetric to said longitudinal centerline and said transverse centerline."
Id. The Examiner finds that Noel discloses much of the subject matter of
claim 1. See Final Act. 2-3 (referencing Noel's Figure 2 and paragraph 18).
The Examiner further finds that Noel teaches that lotion may be applied to a
topsheet in discrete zones. Id. at 3; see also Noel i-f 18 ("Lotion 22 can be
applied by means known in the art in any pattern known in the art. For
example, lotion 22 can be applied as beads, bands, stripes, and continuous
coatings.").
The Examiner also finds that Maeyama discloses that lotion may be
applied to a topsheet of an absorbent article in discrete patterns to reduce
leakage. Final Act. 3--4. The Examiner finds that Maeyama's Figures 9A,
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Application 11/880,931
9B, 9D, and 9F) illustrate lotion patterns that result in a lotion zone with an
asymmetric periphery as required in claim 1. Id.; see also Answer 19
(depicting the lotion zone resulting from the Examiner's proposed
modification of Noel). The Examiner determines that "it would have been
obvious to one of ordinary skill in the art ... to modify[] Noel's reference,
to include asymmetrical lotion zones, as suggested and taught by Maeyama,
for the purpose of ensuring there are no leakages and to obtain the best
absorbency possible for the article." Final Act. 4.
Appellants first argue that Noel discloses a symmetrical lotion zone,
which teaches away from an asymmetrical zone. Br. 4. "A reference may
be said to teach away when a person of ordinary skill, upon reading the
reference ... would be led in a direction divergent from the path that was
taken by the applicant." In re Haruna, 249 F.3d 1327, 1335 (Fed. Cir. 2001)
(quoting Tee Air, Inc. v. Denso Mfg. Mich. Inc., 192 F.3d 1353, 1360 (Fed.
Cir. 1999)); see, e.g., In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)
(holding that, to teach away, the prior art must "criticize, discredit, or
otherwise discourage the solution claimed"). Appellants fail to identify any
teaching in Noel that criticizes, discredits, or otherwise discourages an
asymmetrical lotion zone. Accordingly, Appellants do not inform us of
Examiner error.
Appellants next argue that Maeyama "merely illustrate[ s] alternative
repeating patterns of the lotion and not the periphery of a zone of the same
lotion pattern as applied to an absorbent article and how the lotion zone is
positioned with respect to the article's longitudinal and transverse
centerlines." Br. 4. Appellants' argument does not inform us of Examiner
error, as it argues against Maeyama individually and ignores the Examiner's
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Application 11/880,931
proposed combination, which uses the teachings of Maeyama to modify
Noel's lotion zone. "Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references." In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986) (emphasis added). As the Examiner determines, modifying
Noel's lotion zone 22 with the lotion patterns of Maeyama, such as the
pattern disclosed in Maeyama's Figure 9D, results in a lotion zone with an
asymmetrical periphery as required by claim 1. See Final Act. 15; see also
Answer 19 (depicting the lotion zone resulting from the Examiner's
proposed modification ofNoel). 1 Indeed, Noel expressly teaches applying
lotion in bands or stripes as illustrated by Maeyama. See Noel i-f 18.
For the reasons above, we sustain the rejection of claim 1, and claims
2-5, 7, 9, and 11-20, which fall with claim 1, under 35 U.S.C. § 103(a) as
being unpatentable over Noel and Maeyama.
Rejections II and III
In traversing Rejections II and III, Appellants rely on their arguments
for claim 1. Br. 4--5. As discussed above in connection with our analysis of
Rejection I, we find Appellants' arguments unpersuasive of Examiner error
as to claim 1.
Accordingly, we sustain the Examiners rejection of claim 6 under
35 U.S.C. § 103(a) as being unpatentable over Noel, Maeyama, and Roe and
1 As the Examiner further finds, each individual portion of lotion illustrated
in Maeyama's Figures 9D could be considered a lotion zone, each of which
includes a periphery that satisfies the asymmetrical claim limitations. See
Answer 19-20.
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Application 11/880,931
the Examiner's rejection of claims 8 and 10 under 35 U.S.C. § 103(a) as
being unpatentable over Noel, Maeyama, and Christon.
DECISION
We affirm the Examiner's rejection of claims 1-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
rvb
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