Ex Parte Lee et al

Patent Trial and Appeal Board

Sep 19, 2016

14258680 (P.T.A.B. Sep. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/258,680 04/22/2014
23556 7590 09/19/2016
KIMBERLY-CLARK WORLDWIDE, INC,
Patent Docketing
2300 Winchester Rd.
NEENAH, WI 54956
FIRST NAMED INVENTOR
JuHyungLee
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.
64917759US04 1077
EXAMINER
MARCETICH, ADAM M
ART UNIT PAPER NUMBER
3761
MAILDATE DELIVERY MODE
09/19/2016 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 JUHYUNG LEE,
HYUNGBYUM KIM,
HYUNGWOO PARK,
SEONGDAE ROH,
SEOYEON SON,
SUNGSU A. KIM, and
XIEJIHUA
Appeal2016-007237
Application 14/258,680
Technology Center 3700
Before LINDA E. HORNER, MICHAEL L. HOELTER, and
JEREMY M. PLENZLER, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from a final
rejection of claims 1-20. App. Br. 1. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm.
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Application 14/258,680
THE CLAIMED SUBJECT MATTER
The disclosed subject matter "relates to apertured and embossed
fibrous nonwoven webs which are particularly well adapted for use as intake
layers for personal care absorbent articles." Spec. 1 :9-11. Claim 1 is the
sole independent claim. Claim 1 is illustrative of the claims on appeal and is
reproduced below:
1. A fibrous nonwoven web defining a top surface and a bottom
surface and comprising
a first array of first apertures, each of said first apertures
residing in a respective first depression in said web, said first
depression having a first depression depth, a first depression
density, a first depression open area and a first depression
shape, said first array of first apertures defining a first aperture
density, a first aperture open area and a first aperture shape;
a second array of second apertures, each of said second
apertures residing in a respective second depression in said
web, said second depression having a second depression depth,
a second depression density, a second depression open area and
a second depression shape; said second array of second
apertures defining a second aperture density, a second aperture
open area and a second aperture shape, said second array of
second apertures at least partially surrounding said first array,
said second aperture depth being different from said first
aperture depth, and at least one of said second aperture density
and said second aperture open area respectively being different
from said first aperture density and said first aperture open area,
and
a third array of third apertures, each of said third
apertures residing in a respective third depression in said web,
said third depression having a third depression depth, a third
depression density, a third depression open area and a third
depression shape, said third array of third apertures defining a
third aperture density, a third aperture open area and a third
aperture shape, said second array at least partially separating
said first array from said third array.
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Application 14/258,680
REFERENCES RELIED ON BY THE EXAMINER
Velazquez US D438,958 S Mar. 13, 2001
Costea US 2003/0109839 Al June 12, 2003
Turner US 2006/0019056 Al Jan. 26, 2006
Cree US 200710029694 Al Feb. 8, 2007
Enderby US D660,012 S May 22, 2012
THE REJECTIONS ON APPEAL
Claims 1-8, 10-14, 16, 19, and 20 are rejected under 35 U.S.C. § 103
as unpatentable over Cree and Enderby.
Claim 9 is rejected under 35 U.S.C. § 103 as unpatentable over Cree,
Enderby, and Costea.
Claims 15 and 17 are rejected under 35 U.S.C. § 103 as unpatentable
over Cree, Enderby, and Velazquez.
Claim 18 is rejected under 35 U.S.C. § 103 as unpatentable over Cree,
Enderby, and Turner.
ANALYSIS
The rejection of claims 1--8, 10--14, 16, 19, and 20
as unpatentable over Cree and Enderby
Appellants argue claims 1-8, 10-14, 16, 19, and 20 together. App.
Br. 3-5. We select independent claim 1 for review, with dependent claims
2-8, 10-14, 16, 19, and 20 standing or falling with claim 1. See 37 C.F.R.
§ 41.37(c)(l)(iv).
The Examiner primarily relies on the teachings of Cree "with the
exception of[] second and third arrays of second and third apertures." Final
Act. 4. The Examiner relies on the teachings of Enderby for this disclosure
and also provides an annotated image of Figure 1 of Enderby showing where
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Application 14/258,680
the various arrays can be found. 1 Final Act. 4. The Examiner thereafter
provides a reason to combine Cree and Enderby. Final Act. 4.
Appellants do not challenge the Examiner's reason to combine, but
instead contend that claim 1 "requires three arrays of apertures." App. Br. 4.
Appellants also reference that portion of Appellants' Specification that
discusses the claim term "array."2 App. Br. 4. The Examiner acknowledges
this language in Appellants' Specification, highlights the words "generally
meant," and states, "[t]he flexible definition of 'array' does not require that
the patterns occupy the entire surface of the article" and also, "the term
'array' does not require a repeating or tessellated pattern." Ans. 3--4.
Appellants contend, "Enderby fails to teach at least three arrays of
apertures," and more specifically that "the '3rd area' [indicated by the
Examiner] is actually Yz of a repeating pattern of the '2nd area' and is not,
therefore, a third array." App. Br. 5.
First, it is not disputed that what is identified in the Examiner's
annotation of Enderby' s figure 1 are three "visually distinct and separate
sections or areas of apertures" as stated in Appellants' Specification. Nor is
1 The Examiner also provides "[ fJurther reinterpretations of Enderby" along
with additional annotated images of Figure 1 of Enderby showing additional
first, second, and third arrays. Ans. 4. For the reasons expressed infra, we
need not address these alternate "reinterpretations" to reach a conclusion,
nor Appellants' contentions regarding these "reinterpretations." See Reply
Br. 2-3.
2 Appellants' Specification states, "[b]y 'array' it is generally meant that
there are visually distinct and separate sections or areas of apertures and/or
depressions that form a shape which can be detected when viewed with the
naked eye." Spec. 18:21-24. Thereafter, Appellants' Specification provides
guidance as to "visually distinct;" for example, the first array "visually looks
like a leaf' while each of the second and third arrays "visually looks like a
sinusoidal wave." Spec. 18:25-19:2.
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Application 14/258,680
it disputed that these three areas "form a shape which can be detected when
viewed with the naked eye" as also discussed in Appellants' Specification.
Instead, what Appellants challenge is the Examiner's employment of a
repeating pattern (i.e., "the '3rd area' is actually Yz of a repeating pattern of
the '2nd area"') and particularly the Examiner's 3rd area being a component
of a separate repeating pattern (i.e., in a different repeating set from that of
the 1st and 2nd identified areas).
The possibility that the pattern might be repeating is briefly discussed
by Appellants. For example, Appellants' Specification states,
[ w ]hile the aperture-embossed pattern of Figures 9 and 10 may
be used for the central portion (202A) of the topsheet (202), it
should be appreciated that this pattern can be used across the
entire topsheet (202) as well as other layers and components of
the absorbent article (200).
Spec. 18:7-10. Hence, Appellants' Specification acknowledges that the
pattern in the central portion may also "be used across the entire topsheet."
We are instructed by our reviewing court that, "[ d]uring
reexamination, as with original examination, the PTO must give claims their
broadest reasonable construction consistent with the specification." In re
ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). As a
consequence, we are instructed to "look to the specification to see if it
provides a definition for claim terms, but otherwise apply a broad
interpretation." Id. In the present case, the Examiner looked to Appellants'
Specification, remarked on the "flexible definition" stated therein (i.e.,
"generally meant"), and further noted that "the term 'array' does not require
a repeating or tessellated pattern." Ans. 3--4. Hence, the Examiner
identified where Enderby discloses the limitation missing in Cree because
both claim 1 and Appellants' Specification lack language that would
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preclude the Examiner's use of different arrays found in the same repeating
patterns. For the above reasons, we do not fault the Examiner's claim
construction, nor are we persuaded by Appellants of Examiner error on this
point.
Appellants also contend the Examiner erred because the Examiner's
"'1st area' is immediately adjacent to the '3rd area' and is not, therefore
separated by a '2nd area"' as claimed. App. Br. 5. However, this argument
is premised on the various arrays repeating themselves across the
length/width of the article when, in fact, the claim is silent as to any such
repetition. Instead, claim 1 simply recites a first, second, and third array;
and Appellants fail to indicate how the Examiner erred in identifying three
"visually distinct and separate sections or areas" in Enderby's Figure 1.
Accordingly, we are not persuaded by Appellants' contention. We
sustain the Examiner's rejection of claims 1-8, 10-14, 16, 19, and 20 as
being obvious over Cree and Enderby.
The rejection of claim 9
as unpatentable over Cree, Enderby, and Costea
Appellants do not present separate arguments with respect to this
rejection based on the teachings of Costea. App. Br. 6. Instead, Appellants
acknowledge that "[c]laim 9 ultimately depends from Claim 1" and argue
that "Costea fails to remedy the deficiencies of Cree and Enderby." App.
Br. 6. For the reasons discussed above in the analysis of the first ground of
rejection, Appellants' contentions are not persuasive of Examiner error. We
sustain the Examiner's rejection of claim 9 as being obvious over Cree,
Enderby, and Costea.
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Application 14/258,680
The rejection of claims 15 and 17
as unpatentable over Cree, Enderby, and Velazquez
Appellants argue the rejection of dependent claims 15 and 1 7
together. 3 App. Br. 6-7. We select claim 15 for review, with claim 17
standing or falling with claim 15.
As with Enderby above, the Examiner provides an annotated image of
Figure 1 of Velazquez illustrating where the limitation of claim 15 can be
found. 4 See Final Act. 9; see also App. Br. 7. Appellants "respectfully
submit[] that Velazquez fails to teach at least three arrays of apertures" and
more specifically, "the '3rd area' is actually a portion of the '2nd area' and is
not, therefore, a third array." App. Br. 7. Similar to our discussion above,
the Examiner has identified in Figure 1 of Velazquez different portions of a
repeating array that disclose the recited first, second, and third arrays.
Appellants do not dispute that what the Examiner has identified in
Velazquez are "visually distinct and separate sections or areas of apertures"
as the claim term "array" has been described. Spec. 18:22. Accordingly, for
reasons similar to those already stated (see supra), we are not persuaded of
Examiner error.
3 Appellants contend that "[c]laims 15 and 17 ultimately depend from Claim
1" and thereafter address the limitations of claim 1 (i.e., "Velazquez fails to
remedy the deficiencies of Cree and Enderby"). App. Br. 6-7.
4 The Examiner also provides a reinterpretation of Velazquez along with a
further annotated image of Figure 1 of Velazquez showing additional first,
second, and third arrays. Ans. 5. For the reasons expressed infra, we need
not address this alternate reinterpretation to reach a conclusion, nor
Appellants' contentions regarding this "reinterpretation." See Reply Br. 3-
5.
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Application 14/258,680
The rejection of claim 18
as unpatentable over Cree, Enderby, and Turner
Appellants do not present separate arguments with respect to this
rejection based on the teachings of Turner. App. Br. 7-8. Instead,
Appellants acknowledge that "[ c ]laim 18 ultimately depends from Claim l"
and argue that "Turner fails to remedy the deficiencies of Cree and
Enderby." App. Br. 8. For the reasons discussed above in the analysis of
the first ground of rejection, Appellants' contentions are not persuasive of
Examiner error. We sustain the Examiner's rejection of claim 18 as being
obvious over Cree, Enderby, and Turner.
DECISION
The Examiner's rejections of claims 1-20 are 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
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