Ex Parte Melik et al

Board of Patent Appeals and Interferences

Jan 3, 2012

11044548 (B.P.A.I. Jan. 3, 2012)

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.
11/044,548 01/27/2005 David Harry Melik 9501M2 1970
27752 7590 01/04/2012
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
CHOI, PETER Y
ART UNIT PAPER NUMBER
1786
MAIL DATE DELIVERY MODE
01/04/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID HARRY MELIK, KELYN ANNE ARORA,
and ERIC BRYAN BOND
____________

Appeal 2010-008627
Application 11/044,548
Technology Center 1700
____________

Before CHARLES F. WARREN, TERRY J. OWENS, and
LINDA M. GAUDETTE, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

Appeal 2010-008627
Application 11/044,548

2
DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s decision1
finally rejecting claims 1, 2, 4-7, and 10-20.2 We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
The invention relates to nonwoven webs for use in making disposable
absorbent articles, such as diapers and wipes. (Specification p. 1, ll. 9-17.) Claim
19 is representative of the invention and is reproduced below from the Claims
Appendix to the Appeal Brief:
19. A nonwoven web having an extensibility of at least 80% and comprising
multicomponent fibers comprising:

a. a first component comprising a polypropylene having a melt flow rate
of from about 100 to about 1000 grams per 10 minutes and

b. a second component, spatially separate from the first component,
comprising a polypropylene having a melt flow rate of from about 10 to about 80
grams per 10 minutes,

wherein the first component comprises at least 50% of a surface of the
multicomponent fiber.
Appellants request review of the following grounds of rejection (Br. 3):
1. claims 1, 4-7, 10-16, 19, and 20 under 35 U.S.C. §102(b) as
anticipated by or, in the alternative, under 35 U.S.C. §103(a) as obvious over
Kozulla (US 5,318,735, issued Jun. 7, 1994) (Ans.3 3-7); and

1 Final Office Action mailed Jun. 20, 2008 (“Final”); Advisory Action mailed Nov.
7, 2008.
2 Appeal Brief filed Dec. 9, 2008 (“Br.”).
3 Examiner’s Answer mailed Apr. 27, 2009 (“Ans.).
Appeal 2010-008627
Application 11/044,548

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2. claims 2, 17, and 18 under 35 U.S.C. §103(a) as obvious over
Kozulla, as applied to claims 1, 4-7, 10-16, 19, and 20, and further in view of Kinn
(US 2001/0008965 A1, published Jul. 19, 2001) (Ans. 8-9).
Appellants’ arguments with respect to the second ground of rejection are
limited to their contention that Kinn fails to cure the deficiencies of Kozulla. (Br.
7.) Appellants do not present arguments in support of separate patentability of any
particular claims. (See generally, id. at 4-7.) Rather, Appellants’ arguments are
directed to limitations common to the independent claims (claims 1, 19, and 20).
(Id.)
The issues we consider in this appeal are:
1. Did the Examiner reversibly err in finding that Kozulla teaches or
suggests multicomponent fibers comprising a second component which is spatially
separate from a first component? and
2. Did the Examiner reversibly err in finding that Kozulla teaches or
suggests multicomponent fibers comprising first and second components having
melt flow rates as claimed?4
Appellants concede that Kozulla discloses bicomponent fibers, but contend
there is no teaching of spatially separate first and second components. (Br. 4.)
Appellants direct us to page 5 of the Specification for a definition of the claim term
“spatially separate” (claims 1, 19, and 20). (Id.) The cited portion of the
Specification reads: “Component, as used herein, is defined as a separate part of
the fiber that has a spatial relationship to another part of the fiber. Multicomponent
fibers, commonly a bicomponent fiber, may be in a side-by-side, sheath-core,

4 See Br. 4 (“[Kozulla] does not teach a multicomponent fiber comprising a first
component and a second component spatially separate from the first component
wherein the first and the second components have different melt flow rates as
claimed.”).
Appeal 2010-008627
Application 11/044,548

4
segmented pie, ribbon, or islands-in-the-sea configuration.” (Spec. 5:3-6.)
According to Appellants, “[s]eparate components which are spatially separated
will typically exhibit a step change in properties as you transition from one
component to another.” (Br. 4.) Appellants, relying on Kozulla FIGS. 1 and 2 and
the corresponding description thereof in columns 2 and 3 of the patent, argue
Kozulla’s fibers have “a continuous gradient of molecular weight values from the
inner to the outer surface regions of the cross section of the fiber” and, therefore,
the components do not exhibit the step change in molecular weight needed to meet
the “spatially separate” claim limitation. (Id. at 4-5.)
Appellants’ arguments are not persuasive for the reasons explained by the
Examiner in the Answer on page 9, first full paragraph-page 12, line 2 and page
12, last paragraph-page 16, line 10. The Examiner correctly determined that the
term “comprising” opens the claims to include more than two components. (See
id. at 10.) We agree with the Examiner’s finding that Kozulla’s surface and inner
zones correspond to Appellants’ claimed first and second components. (See id. at
11.) We further determine the Examiner’s fact finding and reasoning is sufficient
to support the Examiner’s determination that Kozulla’s surface and inner zones are
“spatially separate” as required by the claims, regardless of whether this language
is interpreted broadly to require only a physical separation, e.g., by Kozulla’s
intermediate zone, or narrowly as requiring a step change in molecular weight.
(See id. at 12, last para.-16, l. 10.)
In sum, we are not persuaded the Examiner reversibly erred in finding that
Kozulla teaches or suggests multicomponent fibers comprising a second
component which is spatially separate from a first component.
Turning now to the second issue in this Appeal, Kozulla fails to disclose an
embodiment which falls within Appellants’ claimed melt flow rate ranges.
Appeal 2010-008627
Application 11/044,548

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Therefore, we agree with Appellants that the claims cannot be anticipated by
Kozulla. See, e.g., Atofina v. Great Lakes Chemical Corp., 441 F.3d 991, 999
(Fed. Cir. 2006); Titanium Metals Corp. of Am. v. Banner, 778 F.2d 775, 777-82
(Fed. Cir. 1985) (citing In re Petering, 301 F.2d 676, 682 (CCPA 1962) (“It is also
an elementary principle of patent law that when, as by a recitation of ranges or
otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of
them is in the prior art.”)).
However, Appellants do not dispute the Examiner’s findings that Kozulla’s
discloses melt flow ranges for the multicomponent fiber’s surface and inner zones
which overlap the melt flow ranges for the first and second components recited in
appealed claims 1, 19, and 20 (Ans. 11-12.) (See generally, Br. 4-7.) “[T]he
existence of overlapping or encompassing ranges shifts the burden to the applicant
to show that his invention would not have been obvious.” In re Peterson, 315 F.3d
1325, 1330 (Fed. Cir. 2003). Appellants have not provided the requisite arguments
or evidence to meet this burden. Accordingly, we are not persuaded the Examiner
reversibly erred in finding that Kozulla suggests multicomponent fibers comprising
first and second components having melt flow rates as claimed.

ORDER
The rejection of claims 1, 4-7, 10-16, 19, and 20 under 35 U.S.C. §102(b) as
anticipated by Kozulla is reversed.
The rejections of claims 1, 4-7, 10-16, 19, and 20 under 35 U.S.C. §103(a)
as obvious over Kozulla, and claims 2, 17 and 18 under 35 U.S.C. §103(a) as
obvious over Kozulla in view of Kinn are affirmed.

Appeal 2010-008627
Application 11/044,548

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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).
AFFIRMED

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