Ex Parte LAKSO et al

Patent Trial and Appeal Board

Aug 29, 2018

13888989 (P.T.A.B. Aug. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/888,989 05/07/2013
105718 7590 08/31/2018
SCA Hygiene Products AB
c/o Buchanan Ingersoll & Rooney, PC
1737 King Street, Suite 500
Alexandria, VA 22314
FIRST NAMED INVENTOR
ELISABETH LAKSO
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.
1018798-000693 1008
EXAMINER
CAILLOUET, CHRISTOPHER C
ART UNIT PAPER NUMBER
1745
NOTIFICATION DATE DELIVERY MODE
08/31/2018 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):
ADIPDOC 1@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ELISABETH LAKSO, HANS EEN, and JAN W ASTLUND-
KARLSSON
Appeal2017-000492
Application 13/888,989 1
Technology Center 1700
Before JEFFREY T. SMITH, MICHAEL G. McMANUS, and
SHELDON M. McGEE, Administrative Patent Judges.
McGEE, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellant seeks our review of the
Examiner's rejections of claims 2-22. App. Br. 2.
An oral hearing was conducted on August 16, 2018.
We have jurisdiction. 35 U.S.C. § 6.
We affirm.
1 Appellant is the Applicant, SCA Hygiene Products AB, which is also
identified as the real party in interest. App. Br. 2.
Appeal2017-000492
Application 13/888,989
SUBJECT MATTER
The subject matter on appeal concerns methods of producing pant-
type absorbent articles such as diapers. Spec. 1: 11-22.
Independent claim 2 is illustrative of the appealed subject matter, and
is copied below from the Claims Appendix to the Appeal Brief, with
emphasis added to relevant limitations at issue in this appeal:
2. A method for producing pant-type absorbent articles each
article including a chassis structure having at least one elastic
panel and an integrated absorbent core component, the method
including a continuous pant-forming process comprising forming
the chassis structure and incorporating the absorbent core
component into the chassis structure, wherein the at least one
elastic panel is produced by:
stretching an activated two-layer laminate by 35-200% in the
activation direction and introducing the activated two-layer laminate in
the pant-forming process, wherein the activated two-layer laminate is
formed by:
separately producing a two-layer laminate
comprising a first nonelastic fibrous nonwoven web and an elastic
film; and
activating the two-layer laminate by incremental
stretching in at least one activation direction to render the two-
layer laminate elastically stretchable; and
laminating the elastic film of the stretched, activated two-layer
laminate to a continuous nonwoven chassis web to form a three layer
laminate,
wherein a portion of the continuous nonwoven chassis web
extends beyond the stretched, activated two-layer laminate in a
direction perpendicular to the activation direction to form an
extension part,
wherein the stretched, activated two-layer laminate extends from
a waist portion to a leg opening of the chassis structure of the pant-
type absorbent article.
2
Appeal2017-000492
Application 13/888,989
STATEMENT OF THE CASE
The Examiner rejects claims 2--4, 6, 8, 10-16, 18, and 20 under 35
U.S.C. § I03(a) as unpatentable over Wada,2 in view of Jenquin, 3 Veith, 4
and Wu. 5 Final Act. 2-8. The Examiner additionally rejects claims 5, 7, 9,
17, 19, and 21 as unpatentable under§ I03(a) over Wada, Jenquin, Veith,
and Wu, and further in view of additional prior art. Id. 9-10.
Relevant to this appeal, the Examiner finds, and Appellant does not
dispute, that Wada discloses most of the limitations recited in claim 2, but
"fails to disclose whether the elastic members may be formed by laminating
a two layer elastic laminate onto the nonwoven web." Id. 2---6. The
Examiner turns to the disclosure of Veith to address this difference and finds
that Veith discloses it was known in the art to make a panel material with
elastic properties for a disposable absorbent article. Id. at 6. The Examiner
finds that Veith discloses a variety of elastomeric materials to render such
elastic properties to an absorbent article - including elastic films, a
plurality of elastic strands, and an elastic laminate. Id. citing Veith ,r 17.
The Examiner concludes that it would have been obvious to substitute
Wada's elastic strands for an elastic laminate because Veith teaches "they
are known functional equivalents." Id. at 6-7.
OPINION
Appellant focuses its case on appeal on limitations appearing in each
of the independent claims 2, 16, and 20. We, therefore, select claim 2 as
2 Wada et al., US 2006/0254708 Al, published Nov. 16, 2006.
3 Jenquin et al., US 2005/0230037 Al, published Oct. 20, 2005.
4 Veith et al., US 2004/0243089 Al, published Dec. 2, 2004.
5 Wu, US 5,422,172, issued Jun. 6, 1995.
3
Appeal2017-000492
Application 13/888,989
representative and decide the propriety of the rejection of claims 2--4, 6, 8,
10-16, 18, and 20 on the basis of claim 2 alone. 37 C.F.R. § 4I.37(c)(l)(iv).
Appellant fails to substantially address separately rejected claims 5, 7, 9, 1 7,
19, and 21. App. Br. 11. Because claims 5, 7, 9, 17, 19, and 21 are not
separately argued by Appellant, these claims stand or fall with the
independent claims from which they depend.
Appellant's sole argument on appeal is that the Examiner's proffered
substitution of Wada's elastic strands for Veith's elastic film as part of an
elastic laminate would change Wada's principle of operation- i.e.,
reducing wrinkles in the article once the absorbent core is attached. App.
Br. 9--11; Reply Br. 1-3. Appellant urges that Wada accomplishes this by
"lessening the contractive forces of the elastic members 4" by either cutting
the elastic or by heat embossing. Id. at 9 citing Wada ,r 50. Thus, Appellant
contends that the skilled artisan would have had no reason to substitute
Wada's discontinuous strands with a continuous elastic film or laminate, and
that doing so would change Wada's principle of operation. Id. at 9--10.
For several reasons, this argument is unpersuasive of reversible error.
First, Appellant's argument regarding the substitution of
discontinuous strands with a continuous film or laminate appears to be a
misstatement of the rejection actually made by the Examiner. The subject
matter of independent claim 1 is directed to a method of making an
absorbent article such as a diaper. However, Appellant's arguments appear
to be mainly directed to the final product. In the rejection, the Examiner
finds that Wada describes a method for making a diaper that differs from the
claimed invention in that Wada fails to disclose that the elastic strands can
be bonded to the nonwoven layer prior to lamination upon the nonwoven
chassis component. Final Act. 4. The Examiner finds, however, that
4
Appeal2017-000492
Application 13/888,989
Jenquin discloses a method of manufacturing diapers wherein an elastic
laminate is formed by first forming an elastic laminate comprising elastic
components and nonwoven components and subsequently laminating to a
continuous nonwoven chassis web. Id. 4--5. The Examiner then determines
that a person of ordinary skill in the art would have recognized the method
of first forming an elastic laminate comprising elastic components and
nonwoven components that is then subsequently laminated to a continuous
nonwoven chassis web to be known and conventional as evidenced by
Jenquin. Id. 5. Thus, Appellant's argument regarding substituting a
discontinuous elastic for a continuous elastic does not address the
obviousness of first forming an elastic laminate comprising elastic
components and nonwoven components that is subsequently laminated to a
continuous nonwoven.
More specifically, we note that Wada's three-layer laminate-which
includes the elastic - is prepared prior to the step which lessens the
contractive forces of the elastic. Wada ,r,r 45-50. In the very first step of
Wada's manufacturing process, elastic members 4, 5A, and 5B are inserted
between outer surface web 10 and inner surface web 11 to form three-layer
laminate 12. Wada ,r 45; Fig. 1 A ( showing where, in step 1, elastic members
4, 5A, and 5B are fed between webs 10 and 11 to form laminate 12). At
some later step, Wada discloses that the contractive forces of elastic
members 4, 5A, and 5B are lessened by going through a treatment step, e.g.,
heat embossing or cutting. Wada ,r,r 49-50. Therefore, Wada's treatment
step that lessens the contractive forces of the elastic member, e.g., cutting
the elastic to make it discontinuous, occurs after laminate 12 is
manufactured.
5
Appeal2017-000492
Application 13/888,989
Furthermore, we emphasize that Appellant has not provided any
evidentiary support for the proposition that Wada's principle of operation
would be changed by substituting Wada's elastic members for an elastic
film. As such, Appellant's argument the recited elastic film would not
behave similarly to Wada's elastic strands in the laminate structure (Reply
Br. 2) amounts to no more than a bare assertion. "Attorney's argument in a
brief cannot take the place of evidence." In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974).
Simply stated, on this record, the Examiner undisputedly finds that
Veith discloses the functional equivalence of certain elastomeric materials.
Final Act. 7 citing Veith ,r 17; App. Br. generally. 6 Thus, the Examiner
reasonably establishes that the skilled artisan would have recognized elastic
laminates or films as known alternatives for Wada's elastic strands.
"[W]hen a patent claims a structure already known in the prior art that is
altered by the mere substitution of one element for another known in the
field, the combination must do more than yield a predictable result." KSR
6 Appellant for the first time in the Reply Brief (Reply Br. 2) argues that
Veith fails to recognize the functional equivalency of elastic strands and
elastic film. The Examiner made this factual finding in the Final Office
Action (Final Act. 7), and Appellant has not shown good cause regarding
why this argument could not have been raised in the Appeal Brief. See 37
C.F.R. § 41.37 (c)(l)(iv) ("Except as provided for in§§ 41.41, 41.47, and
41.52, any arguments or authorities not included in the appeal brief will be
refused consideration by the Board for purposes of the present appeal.").
See also 3 7 C.F .R. § 41.41 (b )(2) ("Any argument raised in the reply brief
which was not raised in the appeal brief, or is not responsive to an argument
raised in the examiner's answer, including any designated new ground of
rejection, will not be considered by the Board for purposes of the present
appeal, unless good cause is shown."). Consequently, we will not consider
Appellant's untimely argument.
6
Appeal2017-000492
Application 13/888,989
Int'! Co. v. Teleflex Inc., 550 U.S. 398,416 (2007), citing United States v.
Adams, 383 U.S. 39, 50-51 (1966). Here, Appellant fails to provide any
evidence demonstrating that the use of an elastic laminate or film in Wada's
process would be anything but predictable. See also In re Mayne, 104 F.3d
1339, 1340 (Fed. Cir. 1997) (explaining that the substitution of one known
element for a known equivalent is prima facie obvious).
For these reasons, and those provided by the Examiner, Appellant has
failed to identify reversible error in the Examiner's rejection of claims 2-22.
We, therefore, sustain the Examiner's rejections of these claims.
DECISION
The Examiner's final decision to reject claims 2-22 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).
AFFIRMED
7