Ex Parte Niemeyer et al

Board of Patent Appeals and Interferences

Mar 17, 2006

10025214 (B.P.A.I. Mar. 17, 2006)

1
The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
Ex parte MICHAEL J. NIEMEYER,
KENT A. FRANKLIN, ROBIN K. NASON,
SUSAN E. SHAWVER, PAUL W. ESTEY,
and LARRY N. BARNETT
______________
Appeal No. 2006-0827
Application 10/025,214

_______________
ON BRIEF
_______________
Before KIMLIN, WALTZ, and JEFFREY T. SMITH, Administrative Patent
Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the rejection of claims 1-6, 8-25,
27-40 and 42-48. Claim 1 is illustrative:
1. An absorbent structure, comprising:
an absorbent core; and
Appeal No. 2006-0827
Application 10/025,214
Rosch is not listed in the Examiner’s Answer under the1
heading “Evidence Relied Upon,” but appears in the statement of
a rejection, as recognized by appellants.
2
an absorbent wrap including at least 5% binder material mixed
throughout a fibrous absorbent such that the absorbent fibers are
stabilized by the binder material, the absorbent wrap fully
surrounding the absorbent core and overlapping at least a portion
of the absorbent wrap, the absorbent wrap providing at least 20%
of a total absorbent capacity of the absorbent structure.
The examiner relies upon the following references as evidence
of obviousness:
Putzier 5,262,218 Nov. 16, 1993
Rosch 6,009,558 Jan. 4, 20001
Celanese (GB ‘648) 1,231,648 May 12, 1971
Everett et al. (Everett) WO 99/17695 Apr. 15, 1999
Appellants’ claimed invention is directed to an absorbent
structure comprising an absorbent core and an absorbent wrap which
fully surrounds the core and overlaps at least a portion of the
wrap. The wrap includes at least 5% binder material and provides
at least 20% of the total absorbent capacity of the structure.
Appealed claims 1, 3-6, 8, 10, 11, 16, 19-21, 23-25, 27, 29
and 30 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over Putzier in view of GB ‘648. Claims 1-6, 8-14, 16-25 and 27-33
stand rejected under 35 U.S.C. § 103(a) as being unpatentable over
Everett in view of GB ‘648. Also, claims 15, 43 and 35-48 stand
Appeal No. 2006-0827
Application 10/025,214
3
rejected under 35 U.S.C. § 103(a) as being unpatentable over Everett
in view of GB ‘648 and Rosch.
Appellants have provided separate arguments only for claims 1
and 16 on appeal. Accordingly, all the appealed claims stand or
fall together with claims 1 and 16.
We have thoroughly reviewed each of appellants’ arguments for
patentability. However, we are in complete agreement with the
examiner that the claimed subject matter would have been obvious to
one of ordinary skill in the art within the meaning of Section 103
in view of the applied prior art. Accordingly, we will sustain the
examiner’s rejections for essentially those reasons expressed in the
answer, which we incorporate herein, and we add the following for
emphasis only.
We consider first the rejection over Putzier in view of GB
‘648. There is no dispute that Putzier, like appellants, discloses
an absorbent structure comprising an absorbent core and an absorbent
wrap which surrounds the core and overlaps a portion of itself.
Appellants also concur that Putzier expressly teaches a binder which
stabilizes the wrapper. It is appellants’ contention, however, that
Putzier does not disclose that the binder is mixed throughout the
fibrous absorbent material of the wrap. According to appellants,
“the binder [of Putzier] is not described as an integral element of
the wrapper, but instead is listed as an independent element” (page
Appeal No. 2006-0827
Application 10/025,214
4
4, principal brief, first paragraph). Appellants also submit that
the wrapper of Putzier has all the binder material concentrated
along its seam.
We are not persuaded by appellants’ argument. Rather, we agree
with the examiner that Putzier’s disclosure of “a binder stabilizing
the wrapper” (column 2, line 48) provides a teaching, or at least a
suggestion, to one of ordinary skill in the art that the binder is
mixed throughout the wrapper. Also, the examiner accurately points
out that “there is nothing in the entire disclosure of Putzier to
support the contention that the binder is only applied at the seam
... Putzier repeatedly states that the binder stabilizes the
wrapper, not the seam where the wrapper is overlapped on itself”
(paragraph bridging pages 6 and 7 of answer). Moreover, we find
that it has been conventional in the art to stabilize a fibrous
structure by incorporating a binder throughout, as evidenced by
GB ‘648.
Appellants also maintain that Putzier does not teach or suggest
that the absorbent wrap provides at least 20% of the total absorbent
capacity of the structure, as presently claimed. Appellants contend
that “the wrapper disclosed in Putzier constitutes, at most, 8% wt.
Of the absorbent structure” (page 5 of principal brief, penultimate
paragraph). However, the portion of Putzier cited by appellants
specifically states that “[e]specially preferred are non-woven
Appeal No. 2006-0827
Application 10/025,214
5
substances of cotton-type materials which, for example, account for
5 to 8 wt. %, preferably 6 to 7 wt. %, of the entire material”
(column 4, lines 65-68, emphasizes added). Hence, Putzier simply
teaches that an especially preferred embodiment for the wrapper is a
cotton-type material containing the recited amount of binder. It is
well-settled that a reference disclosure must be considered for all
that it fairly teaches, not just its preferred embodiments.
Accordingly, we agree with the examiner that one of ordinary skill
in the art would have found it obvious to balance the various
parameters of strength, absorbency, etc., in determining the optimum
amount of binder in the wrapper. It has generally been held that
where patentability is predicated upon a change in the condition of
a prior art composition, such as a change in concentration or the
like, the burden is on the applicant to establish with objective
evidence that the change is critical, i.e., it leads to a new,
unexpected result. In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d
1934, 1936 (Fed. Cir. 1990); In re Aller, 220 F.2d 454, 456,
105 USPQ 233, 235 (CCPA 1955). In the present case, appellants have
proffered no evidence that the claimed amount of absorbency in the
wrapper produces any unexpected result.
Regarding the rejection under Section 103 over Everett in view
of GB ‘648, we agree with the examiner that GB ‘648 establishes the
obviousness of incorporating non-irritating binders into the wrapper
Appeal No. 2006-0827
Application 10/025,214
6
of Everett in order to enhance its strength. The fact that Everett
does not utilize a binder in its wrapper does not, in our view,
militate against the obviousness of doing so in view of the state of
the prior art. While appellants maintain that the purpose of
Everett’s wrap is to confine the absorbent material in the core, the
examiner points out that “Everett itself clearly states that the
wrapper itself is to be made of an absorbent material [and] Everett
employs materials which are the same as the materials employed in
the instant application, including cellulosic webs” (page 10 of
answer, first paragraph). As for the claimed wrap providing at
least 20% of the total absorbent capacity of the structure, we refer
to pages 10 and 11 of the examiner’s answer. Also, in the absence
of unexpected results, we find that it would have been obvious for
one of ordinary skill in the art to distribute the absorbency of the
structure in accordance with its particular use. Again, appellants
cite no evidence of unexpected results.
As for the rejection of claims 15, 34 and 35-48 over Everett in
view of GB ‘648 and Rosch, appellants essentially rely upon the same
argument that “there is no suggestion or motivation to apply the
binder material of GB ‘648 to the wrapper material in Everett et
Appeal No. 2006-0827
Application 10/025,214
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al.” (Page 10 of principal brief, penultimate paragraph). For the
reasons set forth above, we do not subscribe to appellants’
position.
In conclusion, based on the foregoing and the reasons well-
stated by the examiner, the examiner’s decision rejecting the
appealed claims is affirmed.
No time period for taking any subsequent action in connection
with this appeal may be extended under 37 CFR § 1.36(a)(iv)
(effective Sept. 13, 2004; 69 Fed. Reg. 49960 (Aug. 12, 2004);
1286 Off. Gaz. Pat. Office 21 (Sept, 7, 2004)).
AFFIRMED
Edward C. Kimlin )
Administrative Patent Judge )
)
)
)
Thomas A. Waltz ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Jeffrey T. Smith )
Administrative Patent Judge )

ECK/cam
Appeal No. 2006-0827
Application 10/025,214
8
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