Ex Parte LaFortune

Board of Patent Appeals and Interferences

Aug 27, 2009

10747924 (B.P.A.I. Aug. 27, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JEFFREY MARK LAFORTUNE
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Appeal 2008-002520
Application 10/747,924
Technology Center 1700
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Decided: August 27, 2009
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Before PETER F. KRATZ, CATHERINE Q. TIMM, and
LINDA M. GAUDETTE, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL

I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1, 2, and 4-19. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
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The invention relates to an absorbent composite for retaining bodily
fluids in disposable articles such as diapers (Spec. 1 and 7). Appellant
applies a surface charge treatment that creates optimum repulsive (like)
charges between components of the absorbent composite, components such
as fluff fiber or superabsorbent polymer (SAP) (Spec. 6). The repulsive
forces are said to promote the expansion of the composite resulting in
increased void volume and flow channels, and thus improving composite
fluid intake rate (Spec. 6). Claim 1 is representative for disposition of the
issue on appeal:
1. An absorbent composite that exhibits an improved fluid intake rate,
wherein at least one component of said composite is treated to retain surface
charges which create repulsive forces between said at least one component
upon fluid insult of said composite; wherein the treatment is a coating
treatment, a chemical treatment, or combination thereof.

The Examiner maintains, and Appellant appeals, the rejection of
claims 1, 2, 4-12, and 15-19 under 35 U.S.C. § 103(a) as unpatentable over
McFarland (US 4,604,313, issued Aug. 5, 1986) in view of Sheu (US
5,700,559, issued Dec. 23, 1997); and the rejection of claims 13, and 14 over
those same references further in view of Kellenberger (US 5,147,343, issued
Sep. 15, 1992).
II. DISPOSITIVE ISSUES
The issues on appeal are:
Has Appellant established that the Examiner reversibly erred in
finding that McFarland and Sheu are analogous art, i.e., within the scope of
the prior art one of ordinary skill would be charged with knowing?
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Has Appellant established that the Examiner reversibly erred in
finding a reason to combine the teachings of the references?
We answer these questions in the negative.
III. FINDINGS OF FACT
The following Findings of Fact (FF) are particularly relevant for
deciding the issues on appeal.
McFarland describes absorbent composites having at least two
nonwoven fabric layers (see, e.g., Fig. 3; col. 1, ll. 6-10). One layer (such as
layer 70 shown in Fig. 3) includes a matrix of melt blown polymer fibers
entangled with wood or other staple fibers (McFarland, col. 1, ll. 6-10 and
col. 6, ll. 10-12). The other layer (such as layer 72 shown in Fig. 3) further
contains superabsorbent particles in addition to the entangled fibers
(McFarland, col. 6, ll. 10-15; col. 9, ll. 21-69). McFarland exemplifies an
absorbent composite in which the melt blown fibers are formed from
extruded polypropylene (McFarland, col. 9, ll. 21-31).
The absorbent composites of McFarland are intended to be used in
wound dressings, diapers, and incontinent products and are capable of
holding large amounts of liquid such as are released in an incontinent adult
(McFarland, col. 2, ll. 58-62; col. 3, ll. 24-28; col. 7, ll. 22-27).
McFarland’s composite presents a cloth-like surface on one side and a
superabsorbent-containing surface on the other side (McFarland, col. 2, ll.
55-58). This allows the placement of the cloth-like surface (layer 70)
towards the skin of the wearer while the superabsorbent-containing surface
is on the interior of the material during use (McFarland, col. 2, ll. 58-62 and
col. 7, ll. 19-20). Because of the presence of the cloth-like surface, the slimy
and clammy feel of wet superabsorbent is not felt by the user (McFarland,
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col. 3, ll. 24-30). When the fiber layer 70 that overlays the superabsorbent
layer 72 is wet, the wetness will spread on the exposed surface layer prior to
being absorbed by the superabsorbent layer (McFarland, col. 7, ll. 31-34).
This presents a drier surface to the wearer after the superabsorbent layer has
absorbed the liquid from the surface layer (McFarland, col. 7, ll. 34-36).
McFarland does not disclose treating any component of the composite
to retain surface charges.
Sheu describes treating articles to be used in aqueous environments
such as animal fluid environments (Sheu, col. 1, ll. 16-17 and 21-24). The
article to be treated, i.e., the substrate, can be selected from a range of
geometries and materials (Sheu, col. 1, ll. 25-26). It may be porous (Sheu,
col. 1, ll. 26-27). It may be in the form of films, sheets, fibers, particles, or
other shapes (Sheu, col. 7, ll. 23-27). It may be a woven or non-woven
(Sheu, col. 4, ll. 25-49). It may be a polypropylene fabric (Sheu, col. 4, ll.
29-32).
Sheu’s substrate is treated with an ionic polymeric layer, and a
polyelectrolyte coating to create a durable hydrophilic surface coating (Sheu,
Title, col. 1, ll. 6-7 and 16-19; col. 2, ll. 3-16; col. 3, ll. 18-22). When
applied to, for instance, nonwoven fabrics, the coating increases
hydrophilicity and water drops are rapidly absorbed or wicked into the
hydrophilic surface material (Sheu, col. 4, ll. 33-49).
Sheu discloses forming a wide range of articles from the coated
substrates ranging from durable hydrophilic articles having a porous
substrate (e.g., medical test strips, implantable drug release devices, filters)
to durable hydrophilic articles with particulate substrates (e.g., powders,
beads, microcarriers, tablets) to biomedical or biocompatible articles (e.g.,
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intraocular lenses or other ophthalmic, prosthetic or implantable articles or
devices) (Sheu, col. 2, ll. 49-54). Sheu also discloses that “[t]his invention
may also be applied in the food industry, the paper printing industry,
hospital supplies, diapers and other liners, and other areas where
hydrophilic, wettable, or wicking articles are desired.” (Sheu, col. 5, ll. 62-
65.)
Sheu provides evidence that high rates of wicking equate to rapid
absorption of water drops (e.g., Sheu, col. 4, ll. 45-47 and col. 8, ll. 30-33).
IV. PRINCIPLES OF LAW
To label a reference as analogous art “merely connotes that it is
relevant to a consideration of obviousness under § 103 as ‘prior art.’” In re
Sovish, 769 F.2d 738, 742 (Fed. Cir. 1985). A reference is relevant where it
is either in the field of the applicant's endeavor or is reasonably pertinent to
the problem with which the inventor was concerned. In re Kahn, 441 F.3d
977, 986-87 (Fed. Cir. 2006).
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
V. ANALYSIS
Appellant contends that McFarland and Sheu are nonanalogous art
(Br. 4). The Examiner, however, finds that the references are within the
same field of endeavor (i.e., absorbent articles) and, therefore, analogous art
for purposes of the obviousness analysis (Ans. 4).
There is no dispute that both Appellant's absorbent composite and
McFarlands’ superabsorbent-containing nonwoven fibrous material are in
the same field of endeavor, i.e., disposable absorbent products such as
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dressings, diapers, incontinence products (Br. 5; Spec. 1 and 7; McFarland,
col. 2, ll. 58-62 and col. 3, ll. 24-28). Rather, Appellant argues that Sheu is
not directed to an absorbent article “in the sense of the present invention and
McFarland.” (Br. 5.) According to Appellant, “Sheu is directed to
plastic/polymer types of materials that are predominently [sic,
predominantly] hydrophobic” (Br. 5, citing to Sheu, col. 1, ll. 6-7). The
Examiner responds that Sheu is directed to treating a variety of articles to
make them more hydrophilic, Sheu’s list of articles to be treated are “diapers
and other liners” as well as other articles in which it would be desirable to
increase hydrophilicity, wettability or wicking ability (Ans. 6, citing Sheu,
column 5, lines 62-65).
The evidence supports the position of the Examiner. Column 1, lines
6 and 7 of Sheu cited by Appellant merely indicates that methods were
known in the prior art for improving the wettability of polymers, many of
which are hydrophobic (Sheu, col. 1, ll. 6-7). This disclosure in no way
negates the more far reaching disclosure in Sheu of a myriad of uses and
substrates to be coated, nor the specific disclosure that the coating may be
applied in “diapers and other liners,” as well as the indication that Sheu’s
coating is intended to be applicable “in other areas where hydrophilic,
wettable, or wicking articles are desired” (see FF above). Sheu further
indicates that articles to be treated include those to be used in aqueous
environments such as animal fluid environments, an environment the
ordinary artisan would understand as including diapers and other such
absorbent articles.
We also determine that Sheu would have been pertinent to the
problems faced by Appellant and McFarland in forming diapers because a
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problem in the diaper art is creating an article that will absorb bodily fluids
and keep those fluids away from the skin of the wearer (see FF above).
Sheu is also concerned with articles that absorb water rapidly (i.e., wick the
water away) (see FF above).
Appellant has not established that the Examiner reversibly erred in
finding that McFarland and Sheu are analogous art, i.e., within the scope of
the prior art one of ordinary skill would be charged with knowing.
Appellant further contends that “there would be no motivation to
utilize a reference, such as Sheu, which teaches a process to make a
hydrophobic item wettable” to modify fibers suitable for the present
invention because the invention and McFarland use fibers that are already
hydrophilic and wettable (Br. 5, citing Spec. p. 7, l. 27 to p. 8, l. 10 and
McFarland, col. 2, ll. 32-34). Appellant also contends that one would not be
motivated to utilize a reference which teaches the properties of
hydrophilicity, wettability and wickability (Sheu) in order to improve the
intake rate of an absorbent composite as desired in claim 1 (Br. 6).
Appellant has not convinced us that the evidence fails to support the
Examiner’s finding of a reason to combine. The portion of the Specification
cited by Appellant, page 7, line 27 to page 8, line 10, describes a SAP/fluff
mixture comprising hydrophilic fibers (e.g., wood fibers), and
superabsorbent material. However, it also discloses that other fibers may be
included such as hydrophobic fibers (e.g., polypropylene fibers) treated to
exhibit hydrophilic properties (Spec. p. 8, ll. 5-6). The claims do not
exclude the incorporation of hydrophobic fibers.
The portion of McFarland cited by Appellant, column 2, lines 32-34,
describes polymer fibers entangled with wood fibers. Polypropylene
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polymer fibers are exemplified by McFarland (FF above). Sheu exemplifies
coating a polypropylene nonwoven to increase its hydrophilic properties.
Using the coating of Sheu to coat the nonwoven of McFarland appears to be
no more than the use of a known coating system for its known function of
increasing hydrophilicity for its known predictable result (increasing
wetting, and wicking and absorption rate as taught by Sheu).
Moreover, we note the words “improved intake rate” in claim 1 use
the relative term “improved” without stating what it is improved relative to.
The claim further does not specify that the treatment results in the
improvement. The phrase “improved intake rate,” therefore, has little effect
on the scope of the claim. Furthermore, we find that Sheu provides a
sufficient reason for applying the coating to the nonwoven composite article
of McFarland for increasing hydrophilicity, wetting, and wicking. Those
properties are desirable in an absorbent pad such as that taught by
McFarland.
Appellant has not established that the Examiner reversibly erred in
finding a reason to combine the teachings of the references.
Appellant does not advance any additional arguments against the
rejection of claims 13 and 14 which further relies upon Kellenberger.
VI. CONCLUSION
Appellant has limited the scope of the arguments to the above issues
and does not further contest the Examiner’s rejections of the claims.
Therefore, we sustain the rejection of claims 1, 2, 4-12, and 15-19 under 35
U.S.C. § 103(a) as unpatentable over McFarland in view of Sheu; and the
rejection of claims 13, and 14 over those same references further in view of
Kellenberger.
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VII. DECISION
The decision of the Examiner is affirmed.
VIII. TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(v).

AFFIRMED

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