Ex Parte Mansfield et al

Patent Trial and Appeal Board

Sep 15, 2016

13456358 (P.T.A.B. Sep. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/456,358 04/26/2012
27752 7590 09/19/2016
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Todd Leon Mansfield
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.
10051C 1439
EXAMINER
KIDWELL, MICHELE M
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
09/19/2016 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):
centraldocket.im @pg.com
pair_pg@firsttofile.com
mayer.jk@pg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TODD LEON MANSFIELD, EBRAHIM REZAI,
JAMES THOMAS BADER, and
ADAM DANIEL SCHMIDTZ
Appeal2014-008402
Application 13/456,358
Technology Center 3700
Before JENNIFER D. BAHR, LINDA E. HORNER, and
BRANDON J. WARNER, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Todd Leon Mansfield et al. (Appellants) appeal under 35 U.S.C. § 134
from the Examiner's decision rejecting claims 1-20 under 35 U.S.C.
§ 103(a) as unpatentable over Zhang (US 6,410,129 B2, iss. June 25, 2002)
and Schonbeck (US 2006/0225835 Al, pub. Oct. 12, 2006). We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appeal2014-008402
Application 13/456,358
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A disposable absorbent article which comprises a chassis
having a front waist region, a back waist region, and a crotch
region between the front and back waist regions, the chassis
having two opposing longitudinal edges and two perpendicularly
placed end edges, the chassis further comprising:
a. a liquid permeable topsheet spanning at least the
crotch region;
b. a backsheet spanning at least the crotch region;
c. an absorbent core disposed between the topsheet
and backsheet; and
d. an elastic member disposed along at least one
opposing longitudinal edge in either the front waist
or back waist region of the chassis wherein the
member comprises a non-breathable, unapertured,
skinless elastomeric layer selected from the group
consisting of styrene isoprene styrene block
copolymers, styrene butadiene styrene block
copolymers, styrene ethylene butylene styrene
block copolymers, and combinations thereof,
wherein the elastomeric layer is subjected to an anti-
blocking treatment comprising treatment with a powder additive
prior to lamination with one or more additional nonwoven webs,
the treatment of the elastomeric layer with a powder additive
comprising application of the powder to one or both surfaces of
the elastomeric layer, and
wherein the elastomeric layer exhibits an Energy
Recovery Value of at least about 0.77.
DISCUSSION
Independent claims 1 and 16 recite, in relevant part, "an elastic
member ... compris[ing] a non-breathable, unapertured, skinless
elastomeric layer." Br. 7, 10, Claims App.
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Appeal2014-008402
Application 13/456,358
The Examiner finds that Zhang discloses an absorbent article
comprising, inter alia, an elastic member having a non-breathable,
unapertured, and skinless elastomeric layer. Final Act. 3 (citing Zhang,
col. 9). Specifically, the Examiner finds that "Zhang ... disclose[s] the use
of a non-apertured, planar layer" and "the use of the web in a porous, or
apertured, state as well as in the non-apertured state." Id. at 5 (citing Zhang,
col. 9, 11. 39--41). The Examiner explains that "Zhang ... differentiates
between the use of an apertured layer and a non-apertured layer a[t] least in
col. 3, line 64 to col. 4, line 5 where Zhang discloses that the web is useful
as a waistband and goes on to say [that] the porous web is used where
breathable material is desired." Id. According to the Examiner, "[t]his
section also reinforces that Zhang anticipates the use of [a] non-breathable
material for use with the waistband[,] as the distinction is made to use a
breathable material in other areas." Id. (citing Zhang, col. 3, 1. 64---col. 4,
1. 5).
Appellants argue that "Zhang discloses an apertured elastic layer, not
an unapertured elastic layer." Br. 4. In particular, Appellants assert that the
description of the elastic layer in column 9 of Zhang pertains to elongation
of the elastic layer "measured 'at room temperature when in a non-apertured,
planar condition.'" Id. at 3. According to Appellants:
This is not the condition that Zhang's elastic layer is used in its
"multilayer web [formed] into a macroscopically-expanded,
three-dimensional configuration according to the method
described [therein]" ([Zhang,] col. 9, lines 31-36), which is
shown in Fig. 2 therein, and "exhibits a multiplicity of primary
apertures ... and secondary apertures" (col. 9, line 66 to col. 10,
line 37), and is clearly not planar.
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Appeal2014-008402
Application 13/456,358
Id. For the reasons that follow, Appellants' argument is persuasive of error
in the rejection.
Zhang discloses that "the elastomeric layer itself is capable of
undergoing from 50% to 1200% elongation at room temperature when in a
non-apertured, planar condition." Zhang, col. 9, 11. 39--41 (emphasis
added). We understand the "non-apertured, planar condition" referred to by
Zhang to represent the unprocessed condition of the elastic layer before it is
incorporated into the elastomeric web (i.e., elastic member) and used in the
manufacture of an absorbent article. Zhang describes the elastomeric web
(i.e., which comprises an elastic layer) as having apertures in multiple
surfaces. See Zhang, col. 4, 11. 29-36; col. 10, 11. 13-16, 32-33. The
Examiner does not direct our attention to any disclosure in Zhang of a non-
apertured elastic web or of the elastic layer of Zhang's elastomeric web
being in a non-apertured, planar condition "when embodied in an absorbent
article." Br. 4.
Additionally, with respect to the Examiner's finding that Zhang
distinguishes the use of non-breathable and breathable materials in the
absorbent article (Final Act. 4--5 (citing Zhang, col. 3, 1. 64--col. 4, 1. 5)), this
finding lacks adequate support in the reference. The cited portion of Zhang
discloses:
In a preferred embodiment, the elastomeric web is suitable for
use in elasticized or body-hugging portions of disposable
absorbent articles such as side panels, waist bands, cuffs, or of
health care products such as dressings, bandages and wraps. The
porous extensible polymeric webs of the present invention may
also be used in other portions of the absorbent articles where a
stretchable or breathable material is desired, such as topsheets
or backsheets.
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Appeal2014-008402
Application 13/456,358
Zhang, col. 3, 1. 64---col. 4, 1. 5 (emphasis added). In this regard, we agree
with Appellants that "the Examiner improperly reads contrast into this
portion of Zhang's disclosure, i.e[.,] that 'the elastomeric web' described in
the first portion of the cited passage is unlike 'the porous extensible
polymeric webs' described in the second portion of the cited passage."
Br. 3. We do not understand the cited portion of Zhang to distinguish a
"polymeric web" as breathable and an "elastomeric web" as non-breathable;
rather, one having ordinary skill in the art "would more likely than not read
these two portions as additive, not contrasting." Id. at 4. Moreover, Zhang's
primary objective is "to provide ... an elastomeric film that is form-fitting
and breathable (i.e., vapor permeable)." Zhang, col. 3, 11. 38-39 (emphasis
added). Zhang discloses that "[t]he elastomeric film is useful in a forming
process to provide a porous, macroscopically-expanded, three-dimensional,
elastomeric web" that is "suitable for use in elasticized or body-hugging
portions of disposable absorbent articles." Id., col. 3, 11. 61---66 (emphasis
added). For example, "[b ]y having side panels 420 comprising an
elastomeric web of the present invention, the diaper ... provid[ es] for [a]
close, comfortable fit with breathability." Id., col. 23, 11. 2---6 (emphasis
added).
For the above reasons, the Examiner fails to establish by a
preponderance of the evidence that Zhang discloses an absorbent article
having "an elastic member ... compris[ing] a non-breathable, unapertured,
skinless elastomeric layer," as called for in independent claims 1 and 16.
Moreover, the Examiner does not articulate any additional findings or
reasoning, or rely on any teaching of Schonbeck, that would remedy the
aforementioned deficiency in the Examiner's findings with respect to Zhang.
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Appeal2014-008402
Application 13/456,358
Accordingly, we do not sustain the rejection of independent claims 1 and 16,
and of dependent claims 2-15 and 17-20 as unpatentable over Zhang and
Schonbeck.
DECISION
The Examiner's decision rejecting claims 1-20 is reversed.
REVERSED
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