12215442 (P.T.A.B. Feb. 23, 2017)

Ex Parte Johnson et al

Patent Trial and Appeal BoardFeb 23, 2017

12215442 (P.T.A.B. Feb. 23, 2017)

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. 64397788US01 5525 EXAMINER OSINSKI, BRADLEY JAMES ART UNIT PAPER NUMBER 3763 MAIL DATE DELIVERY MODE 12/215,442 06/26/2008 23556 7590 02/24/2017 KIMBERLY-CLARK WORLDWIDE, INC. Patent Docketing 2300 Winchester Rd. NEENAH, WI54956 Kroy D.Johnson 02/24/2017 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 PATENT TRIAL AND APPEAL BOARD Ex parte KROY D. JOHNSON, FRANK G. DRUECKE, BLAKE A. HONDL, and JONATHAN KYLE ARENDT Appeal 2015-002484 Application 12/215,442 Technology Center 3700 Before LINDA E. HORNER, MICHAEL L. HOELTER, and PAUL J. KORNICZKY, Administrative Patent Judges. KORNICZKY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants, Kroy D. Johnson et al.,1 appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1—8 and 14—18 under 35 U.S.C. § 103(a) as being unpatentable over Carstens (US 2007/0106356 Al, pub. May 10, 2007) and Zhang (US 2002/0114827 Al, pub. Aug. 22, 2002).2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellants identify Kimberly-Clark Worldwide, Inc. as the real party in interest. Br. 1. 2 Claims 9—13 are cancelled. Br. 1. Appeal 2015-002484 Application 12/215,442 THE CLAIMED SUBJECT MATTER The claims are directed to “a disposable garment constructed to enclose or cover a portion of the body, and a therapeutic article with which the user may selectively position on the garment.” Spec. 1:3—5. Claims 1, 17, and 18 are the independent claims. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A therapeutic delivery system for the body of a user comprising: a single-use disposable appliance for selectively holding at least one therapeutic article against the user's body, said appliance constructed to enclose or cover at least a portion of the body in need of treatment; and wherein the at least one therapeutic article can be selectively positioned by the user on said appliance, wherein the appliance comprises a body-facing side, an exposed side opposite the body-facing side, and a therapeutic agent on the body-facing side; wherein the appliance can deliver an effective amount of the therapeutic agent to the portion of the body in need of treatment; and wherein the therapeutic article comprises at least one air- permeable semi-barrier disposed on the therapeutic article, the air-permeable semi-barrier configured to be removable by the user while leaving the therapeutic article held by the appliance. ANALYSIS The Rejection of Claims 1—8 and 14—18 As Unpatentable Over Carstens and Zhang The Examiner finds that Carstens discloses all of the limitations in independent claims 1,17, and 18 except for an air-permeable semi-barrier configured to be removed by the user while leaving the therapeutic article held by the appliance. Final Act. 2—3 (claim 1), 5—6 (claim 17), 6—7 (claim 18). The Examiner finds that this missing limitation is disclosed by Zhang, 2 Appeal 2015-002484 Application 12/215,442 which discloses a therapeutic delivery system with a therapeutic article 108 to deliver an effective amount of therapeutic agent to a body in need of treatment. Id. The Examiner finds that Zhang’s article comprises at least one air-permeable semi-barrier 182 disposed on the therapeutic article, and the air-permeable semi-barrier is configured to be removable by the user while leaving the therapeutic article held by the appliance. Id.', see also Zhang 1110 and Fig. 13 (showing air impermeable layer 186 and air permeable layers 182, 176 that may be selectively removed to regulate the amount of air exposed to the temperature regulating mechanism 108). The Examiner determines that it would have been obvious to modify Carstens’ therapeutic article by adding “a plurality of air-permeable semi barriers over the exposed side (the side which allows air to enter the article and activate the heat generating material) which allow different amounts of air to pass as taught by Zhang in order to control the amount of heating.” Final Act. 3 (claim 1), 6 (claim 17), 7 (claim 18). Appellants argue that the Examiner’s rejection is wrong because [removing [Carstens’] air-permeable layer identified . . . would destroy Carstens’ thermal pack. The addition of Zhang does not correct the deficiencies of Carstens. As with Carstens, the covers of Zhang would not be accessible to a user once the device of Zhang is p[l]aced within Carstens’ holder. . . . The means for attaching or holding the device to the holder in Carstens would block a user from accessing any covers.... and there is no reasonable expectation of success because the references cannot be successfully combined to produce the subject matter of the present application. Br. 4—5; see also Br. 5 (claim 17), 6 (claim 18). 3 Appeal 2015-002484 Application 12/215,442 In response to Appellants’ argument, the Examiner explains that the top sides of Carstens’ article shown in Figures 1 and 2 are the sides facing the body, and the bottom sides are facing away from the body. Ans. 8. The Examiner also explains that, contrary to Appellants’ argument, Zhang teaches adding the permeable covers to the sides facing away from the body “so that the amount of oxygen entering the device (and thus the amount of heating) may be controlled.” Id. The Examiner annotated Figures 1 and 2 of Carstens to illustrate where Zhang’s covers would be added. Id. at 9 (check marks denote location of proposed covers). In response to Appellants’ argument that Zhang’s openings would not be accessible once Zhang’s device is placed within Carstens’ holder, the Examiner explains that the rejection does not use Zhang’s device with Carstens’ device. Because “Carstens already provides all the base structure with the exception of an air-permeable semi-barrier configured to be removed while the article ... is held by the appliance,” Zhang’s “air- permeable semi-barriers are added to the existing” Carstens device. Ans. 9. Appellants do not address the rejection as articulated by the Examiner, and, thus, do not show error by the Examiner. Thus, the rejection of independent claims 1, 17, and 18 is sustained. Because Appellants do not allege any other patentable distinctions for claims 2—8 and 14—16, which depend from claim 1, the Examiner’s rejection of these claims is also sustained. 4 Appeal 2015-002484 Application 12/215,442 DECISION For the above reasons, the Examiner’s rejection of claims 1—8 and 14— 18 is AFFIRMED. 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 5