Ex Parte Melik et al

Patent Trial and Appeal Board

Jul 11, 2018

13293619 (P.T.A.B. Jul. 11, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/293,619 11/10/2011
27752 7590 07/13/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
David Harry Melik
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.
11938M 7910
EXAMINER
NELSON, MICHAEL B
ART UNIT PAPER NUMBER
1787
NOTIFICATION DATE DELIVERY MODE
07/13/2018 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):
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 DAVID HARRY MELIK, STEVEN DARYL SMITH,
and ROBERT JOSEPH MCCHAIN
Appeal2017-009870
Application 13/293 ,619
Technology Center 1700
Before GEORGE C. BEST, N. WHITNEY WILSON, and LILAN REN,
Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's May
24, 2016 decision finally rejecting claims 1-5 and 7-17 ("Final Act."). We
have jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify the real party in interest as The Procter & Gamble Company.
(Br. 1).
Appeal2017-009870
Application 13/293,619
CLAIMED SUBJECT MATTER
Appellants' disclosure is directed to an absorbent article (such as a diaper)
comprising four elements: (a) a topsheet, (b) a backsheet, (c) an absorbent core,
and ( d) an extruded article element (Spec. 3). The extruded article element
comprises a slow recovery stretch laminate having specified composition and
properties (Spec. 3--4). Details of the claimed invention may be found in
independent claims 1 and 17, which are reproduced below from the Claims
Appendix:
1. An absorbent article comprising:
a) a top sheet;
b) a backsheet joined with the topsheet;
c) an absorbent core interposed between the topsheet and
backsheet; and
d) an extruded article element forming at least a portion of
an anal cuff;
wherein the article element comprises a slow recovery
stretch laminate exhibiting a force retention factor of greater than
about 2 for at least two of four hold strains selected from hold
strains of 200%, 150%, 100%, and 60%, and a percent of initial
strain after 15 seconds of recovery at 22 °C of about 10% or
greater;
wherein the slow recovery stretch laminate comprises an
elastic member comprising a block copolymer comprising at least
one soft block and at least two hard blocks;
wherein a soft block backbone is hydrogenated; and
wherein the block copolymer comprises one or both of:
a) one or more hard blocks comprising substituted
polystyrene;
b) one or more soft blocks comprising substituted
polystyrene.
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Application 13/293,619
17. A disposable absorbent article comprising leg cuffs, the leg
cuffs comprising an extruded elastic member comprising at least one
block copolymer comprising at least one soft block and at least two
hard blocks, wherein each of the at least one block copolymer has a
molecular weight distribution of from about 1.09 to about 1.02;
wherein a soft block backbone is hydrogenated; and
wherein the block copolymer comprises one or both of:
a) one or more hard blocks comprising substituted
polystyrene;
b) one or more soft blocks comprising substituted
polystyrene;
wherein the elastic member is extendable to at least 50%
engineering strain after exposure to mineral oil for 30 hours at
room temperature; and
wherein the elastic member is extendable to at least 50%
engineering strain after exposure to isopropyl palmitate for 30
hours at room temperature.
REJECTIONS
I. Claims 1-5 and 7-16 are rejected under 35 U.S.C. § I03(a) as
unpatentable over McKieman2 in view of Smith, 3 Ramdatt, 4 and Harwood, 5 as
evidenced by Eastman. 6
II. Claim 17 is rejected under 35 U.S.C. § I03(a) as unpatentable over
McKieman in view of Smith, Ramdatt, and Harwood, and Masubuchi. 7
2 McKieman et al., US 2005/0273071 Al, published December 8, 2005.
3 Smith et al., US 2006/0246803 Al, published November 2, 2006.
4 Ramdatt et al., US 2008//0311419 Al, published December 18, 2008.
5 Harwood et al., WO 97/01584, published January 16, 1997.
6 Eastman, Hydrogenated C5 Aliphatic Resins, from
http://www.eastman.com/Markets/Tackifier_ Center/Tackifier
Families/Hydrocarbon_Re ... , printed on 10/20/2015.
7 Masubuchi et al., US 6, 176,510 B 1, issued January 23, 2001.
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Application 13/293,619
DISCUSSION
Appellants argue independent claims 1 and 17 together, and do not
separately argue any of the dependent claims. Accordingly, we focus our
analysis on the rejection of claim 1 over McKieman in view of Smith,
Ramdatt, and Harwood, as evidenced by Eastman. 37 C.F.R.
§ 4I.37(c)(l)(iv).
The Examiner finds that McKieman teaches an absorbent article with
the claimed topsheet, backsheet, and absorbent core, and also an article
element prepared by extrusion that includes a slow recovery stretch laminate
having the same percent of initial strain property as claimed (Final Act. 3,
citing McKieman, Abstract, ,r 140). The Examiner also finds that
McKieman teaches that its stretch laminate includes an elastic member
comprising a block copolymer with two hard blocks (styrene) and one
hydrogenated soft block backbone (Final Act. 4, citing McKieman, ,r,r 49,
51, and 57---60).
The Examiner further finds that McKieman does not teach that the
styrene in the copolymer is substituted or that the stretch laminate has
claimed retention force factor (id.).
Appellants do not challenge any of the Examiner's findings based on
McKieman (see Br. 5-7).
The Examiner finds that Smith discloses commercially available
examples of the types of hard/soft styrene/conjugated diene triblock
elastomers as disclosed in McKieman-such as Septon 4033 (Final Act. 4,
citing Smith, ,r 54 ). The Examiner determines that it would have been
obvious to use the exemplified and commercially available triblock
elastomers in Smith (Septon 4033) as the triblock elastomer called for in
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Appeal2017-009870
Application 13/293,619
McKieman because they were commercially available and are described as
being suitable for the same purpose (as elastomers) in the same kind of
application ( elastic layer in an absorbent article) (Final Act. 4--5).
With respect to the limitation that the styrene blocks are substituted,
the Examiner finds that Harwood is directed to styrene hardblocked triblock
elastomers (such as Kraton G), discloses that adjusting the degree of nitrate
substitution in the styrene endblocks improves the high temperature
resistance properties of the composition (Final Act. 6, citing Harwood, 2 and
22). Therefore, the Examiner determines, it would have been obvious to
have nitrated (i.e. substituted) the styrene blocks in McKieman to improve
their high temperature properties (id.).
With regards to the claimed force retention factor, the Examiner finds
that the stretch laminate in McKieman as modified per the rejection includes
substantially the same elastomer composition as in the present application
and therefore has the same force retention factor as in Example 34 of the
Specification ( and hence within the claimed range) (Final Act. 6).
In summary, the rejection is based on the use of the specific
tradenamed styrene butadiene copolymer suggested by McKieman and
Smith (which is the same one used in the present specification), which is
nitrated as taught by Harwood and combined with the tackifying agent from
Ramdatt (explained in detail at pages 5-6 of the Final Action). The force
retention factor limitation is addressed in the rejection via inherency because
the same commercial styrene butadiene copolymer as in the present
Specification is being nitrated to an overlapping degree when compared to
the present Specification and combined with the same commercial tackifier
as in the present specification.
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Application 13/293,619
We have reviewed the arguments and evidence raised by Appellants
in the Appeal Brief, and find them unpersuasive of reversible error
essentially for the reasons well expressed by the Examiner at pages 14--18 of
the Answer. In essence, Appellants have attacked each of the references
individually. However, it is well established that one cannot show
nonobviousness by attacking references individually where the rejections are
based on a combination of references. See In re Merck & Co., 800 F .2d
1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413,426 (CCPA 1981).
None of the attacks on the references specifically address either the reason
the references were cited, or the reasons the Examiner finds that a person of
skill in the art would have combined them as recited in the rejection.
Accordingly, we determine that Appellants have not shown reversible
error in the rejections.
CONCLUSION
We AFFIRM the rejection of claims 1-5 and 7-16 under
35 U.S.C. § 103(a) as unpatentable over McKieman in view of Smith, Ramdatt,
and Harwood, as evidenced by Eastman.
We AFFIRM the rejection of claim 17 under 35 U.S.C. § 103(a) as
unpatentable over McKieman in view of Smith, Ramdatt, and Harwood, and
Masubuchi.
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
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