10430918 (B.P.A.I. Mar. 10, 2010)

Ex Parte Hilbig et al

Board of Patent Appeals and InterferencesMar 10, 2010

10430918 (B.P.A.I. Mar. 10, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte KLAUS HILBIG and BRUNO J. EHRNSPERGER ____________ Appeal 2009-012329 Application 10/430,918 Technology Center 1700 ____________ Decided: March 10, 2010 ____________ Before EDWARD C. KIMLIN, CHARLES F. WARREN, and TERRY J. OWENS, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal from the final rejection of claims 27, 29-36, and 38-49. We have jurisdiction over the appeal pursuant to 35 U.S.C. Â§ 6. Claim 27 is illustrative: Appeal 2009-012329 Application 10/430,918 2 27. A paper tissue, said tissue comprising: paper fibers; a first surface; a second surface; said second surface having discrete raised regions extending therefrom, said raised regions forming said first surface; said first surface having extending fibers wherein said extending fibers have a first end and a second end, said first end being un-bonded to said tissue and said second end being integral with, and bonded to, said tissue; and wherein said raised regions are formed by an embossing pattern. The Examiner relies upon the following references in the rejection of the appealed claims: George 3,101,520 Aug. 27, 1963 Chen 5,990,377 Nov. 23, 1999 Hein 6,863,107 B2 Mar. 8, 2005 Roussel WO 99/45205 Sept. 10, 1999 MÃ¼ller GB 2 376 436 A Dec. 18, 2002 Appellants' claimed invention is directed to a paper tissue comprising a second surface having discrete raised regions that form a first surface. Fibers are bonded to the first surface and free, un-bonded ends of the fibers extend from the first surface. The raised regions are formed by an embossing pattern. The appealed claims stand rejected as follows: Appeal 2009-012329 Application 10/430,918 3 (a) claims 27, 30-33, 35, 36, 46, and 50 under 35 U.S.C. Â§ 102(b) as being anticipated by Chen, (b) claims 29, 38-45, 48, and 49 under 35 U.S.C. Â§ 103(a) as being unpatentable over Chen in view of the admitted prior art, Muller (GB '436 A), Rousell (WO '205), and Hein, (c) claims 27, 31-35, and 45 under 35 U.S.C. Â§ 102(b) as anticipated by or, in the alternative, under 35 U.S.C. Â§ 103(a) as being unpatentable over George, and (d) claims 29, 30, 36, 38, and 49 under 35 U.S.C. Â§ 103(a) as being unpatentable over George. Appellants do not present separate arguments for any claim in the separately rejected groups of claims. Accordingly, the groups of claims separately rejected by the Examiner stand or fall together. We have thoroughly reviewed each of Appellants' arguments for patentability. However, we are in complete agreement with the reasoning underlying the Examiner's rejections. Accordingly, we will sustain the Examiner's rejections for essentially those reasons expressed in the Answer, and we add the following primarily for emphasis. We consider first the Examiner's Â§ 102 rejection over Chen. We find no error in the Examiner's factually-based legal conclusion that Chen describes the claimed subject matter within the meaning of Â§ 102. Chen, like Appellants, describes a paper tissue comprising discrete raised regions of a second surface that form a first surface from which bonded fibers extend. Appeal 2009-012329 Application 10/430,918 4 Appellants' principal contention is that the raised regions of Chen's tissue are continuous and not discrete, as presently claimed. However, any continuity of Chen's raised regions does not preclude them from being discrete. A dictionary definition of "discrete" is "separate and distinct; not attached to other."1 We agree with the Examiner that Figure 13 of Chen depicts raised regions that are discrete, i.e., unattached, separated by the depressed regions. As pointed out by the Examiner, Appellants have not defined the language "discrete raised regions" in any way which distinguishes it over the raised regions of Chen, and Appellants have not explained how the raised and depressed regions of Chen are different from the web shown in Appellants' Figures 1, 2, 4, and 5. Also, while Appellants state in their Reply Brief that they claim "discrete raised regions (first surface) having fibers and a continuous second surface" (Reply Br. 2, second para.), we note that independent claims 27, 36, and 45 fail to recite a continuous second surface. Appellants do not provide separate, substantive arguments against the Â§ 103 rejection over claim 29, 38-45, 48, and 49 over Chen in view of the admitted prior art and five additional secondary references. We now turn to the Examiner's Â§ 102/Â§103 rejection over George. There is no dispute that George describes a non-woven tissue having raised regions and adjacent depressed regions with fibers extending from the surface of the raised regions. George teaches that the tissue may be made using paper making techniques to produce a corrugated surface. Appellants 1 Webster's New World Dictionary of American English, Third College Edition (1988). Appeal 2009-012329 Application 10/430,918 5 contend that the corrugated surface of George is not the same as the claimed embossed surface since "corrugation from a product standpoint means that the surface is 'ridged or furrowed'" (App. Br. 7, third para.). However, we do not see how Appellants' definition of "corrugated" serves to distinguish it over the raised/depressed surface regions of George which may be fairly characterized as furrowed or folded. Also, while Appellants argue in the Reply Brief that the raised surfaces of George are continuous and not discrete, this argument fails for the reasons set forth above. Furthermore, we agree with the Examiner that, assuming for the sake of argument, that the corrugated surface of George is different than the claimed embossed surface, it would have been obvious for one of ordinary skill in the art to substitute the corrugation process of George with an embossing process that is less damaging to the tissue and less likely to produce holes. Also, Chen evidences that it was known in the art to emboss a pattern on paper tissue. Regarding the Â§ 103 rejections, Appellants base no argument upon objective evidence of nonobviousness, such as unexpected results. In conclusion, based on the foregoing and the reasons well stated by the Examiner, the Examiner's decision rejecting the appealed claims is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(1)(iv). AFFIRMED cam Appeal 2009-012329 Application 10/430,918 6 THE PROCTER & GAMBLE CO. GLOBAL LEGAL DEPT. â€“ IP SYCAMORE BLDG. 4TH FLOOR 299 EAST SIXTH STREET CINCINNATI OH 45202