Ex Parte Polat et al

Patent Trial and Appeal Board

Feb 18, 2016

13115160 (P.T.A.B. Feb. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/115, 160 05/25/2011
27752 7590 02/22/2016
THE PROCTER & GAMBLE COMPANY
Global Patent Services - Legal IP
Central Building, CS
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Osman Polat
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.
10361MC 2905
EXAMINER
SALVA TORE, LYNDA
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
02/22/2016 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
Exparte OSMAN POLAT, DEAN VAN PHAN,
PAUL DENNIS TROKHAN, KEMAL VATANSEVER CATALAN, and
ALAN HOW ARD ULLMAN1
Appeal2014-002435
Application 13/115, 160
Technology Center 1700
Before BEYERL YA. FRANKLIN, GEORGE C. BEST, and
WESLEY B. DERRICK, Administrative Patent Judges.
DERRICK, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner's decision rejecting claims 1-21under35 U.S.C. § 103(a) over
Goldman et al. (US 5,562,646, issued October 8, 1996) ("Goldman") in view
ofMeirowitz et al. (US 5,130,073, issued July 14, 1992) ("Meirowitz"). We
have jurisdiction pursuant to 35 U.S.C. § 6.
We AFFIRM.
1 The Proctor & Gamble Company of Cincinnati, Ohio is identified as the
Real Party in Interest. Appeal Brief filed June 20, 2013 ("Br."), 1.
Appeal2014-002435
Application 13/115, 160
BACKGROUND
Appellants' claimed invention relates to a process for making
absorbent articles comprising nonwoven fibrous structure and to absorbent
articles comprising a nonwoven fibrous structure and to a process for
making the absorbent articles. Spec. Abstract.
Claim 1 is reproduced below.
1. A method for making a sanitary tissue product
comprising a wet-laid nonwoven fibrous structure, said fibrous
structure comprising synthetic fibers comprising a polymer,
natural fibers, and a hydrophilizing agent, said method
comprising depositing an aqueous slurry onto a member to form
a wet-laid nonwoven fibrous structure, wherein said synthetic
fibers comprise a molecular complementary segment that is
associated with a molecular complementary segment of said
hydrophilizing agent based on a correspondence between
physical characteristics of said synthetic fibers and said
hydrophilizing agent, wherein the synthetic fibers exhibit a
durable wettability, and wherein at least one of said molecular
complementary segments comprises a polyester segment.
Br. 17 (Claims App.).
DISCUSSION
Appellants set forth claims 1, 10, and 11 as the independent claims on
appeal. See, e.g., Br. 3-5, 15. For clarity, we note that we conclude claims
9 and 20 are also independent claims as they are directed to a different
statutory category than claims 1 and 11, respectively, from which they
depend. Claims 1, 9, 11, and 20. Nevertheless, whether they are dependent
or independent only matters as to how the claims should be treated for the
collection of fees and that is not a matter within the Board's jurisdiction. Ex
parte Porter, 25 USPQ2d 1144, 1147 (BPAI 1992).
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Appeal2014-002435
Application 13/115, 160
Appellants argue independent claims 1, 10, and 11 together as a group
on the basis of limitations in common with claim 1. Br. 8-15. With no
separate arguments proffered, all claims will stand or fall together with
independent claim 1, which we select as representative. 37 C.F.R.
§ 41.37(c)(l)(iv) (2013).
Upon consideration of the evidence and opposing contentions of
Appellants and the Examiner, we are not persuaded of reversible error in the
Examiner's decision rejecting all claims as unpatentable for obviousness
over Goldman and Meirowitz.2
We begin our analysis by determining the meaning of the claims. It is
well established that "the PTO must give claims their broadest reasonable
construction consistent with the specification. . . . Therefore, we look to the
specification to see if it provides a definition for claim terms, but otherwise
apply a broad interpretation." In re ICON Health & Fitness, Inc., 496 F.3d
1374, 1379 (Fed. Cir. 2007). "[A ]s applicants may amend claims to narrow
their scope, a broad construction during prosecution creates no unfairness to
the applicant or patentee." Id.
In particular, we construe the meaning of the phrases "wet-laid
nonwoven fibrous structure ... comprising synthetic fibers ... , natural
fibers, and a hydrophilizing agent" and "depositing an aqueous slurry onto a
member to form a wet-laid nonwoven fibrous structure" (claim 1) to
determine whether the claimed method requires the synthetic fibers, natural
fibers, and hydrophilizing agent to be distinct components provided to the
2 We refer to the Final Office Action (mailed February 27, 2013), the Appeal
Brief (filed June 20, 2013), and the Examiner's Answer (mailed October 25,
2013).
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Application 13/115, 160
aqueous slurry such that the synthetic fibers and the hydrophilizing agent
only associate once combined in the aqueous slurry of the wet-laying
process. Having carefully considered the Specification, we do not find the
claims so limited. Rather, we find the broadest reasonable interpretation in
light of the Specification encompasses methods using synthetic fibers that
have been treated (fused with) hydrophilizing agent prior to being provided
to the aqueous slurry as the wet-laid nonwoven fibrous structure formed
would comprise synthetic fibers, natural fibers, and a hydrophilizing agent
and the method would include "depositing an aqueous slurry ... to form
[the] wet-laid nonwoven fibrous structure" (claim 1 ).
As to the portions of the Specification cited by Appellants (Br. 11 ):
page 7, lines 1-6, relates to properties usually present under preferred usage
conditions; page 17, lines 22-29, relates to what may occur during a wet-laid
papermaking process as a result of "association of a hydrophilizing agent
with the synthetic fibers" (line 22), but does not address whether the
association preceded dispersion; page 21, lines 23-29, relates to what is "a
typical wet-laid process" (line 23) and to particular embodiments of the
process; and page 25, lines 6-15, relates to an example (Example 4 ). These
portions of the Specification, accordingly, do not militate for the narrower
construction proffered by Appellants.
Turning to the applied prior art, the Examiner relies on Goldman for
its disclosure of absorbent products that contain fibrous structure comprising
natural and synthetic fibers, that thermoplastic polyester fibers are suitable,
that the hydrophobic synthetic fibers can be treated with a surfactant to form
a hydrophilic surface, and that wet-laid processes can be used to make
nonwoven layers included in the absorbent products. Ans. 2-3 (citing
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Appeal2014-002435
Application 13/115, 160
Goldman Abstract; col. 1, 11. 14-25; col. 23, 11. 14-32; col. 24, 11. 19-22; col.
26, 11. 53-55; col. 27, 11. 14-18, 31-35, 43-55; col. 27, 1. 66 to col. 28, 1. 15;
col. 36, 11. 3-10; col. 52, 11. 43--48).
The Examiner relies on Meirowitz for its disclosure pertaining to
making an article comprising a nonwoven fibrous structure having a
plurality of synthetic fibers and how it overcomes the shortcoming that the
surface treatment of polyester fibers with surfactants tends to wash off. Ans.
3--4 (citing Meirowitz Abstract; col. 1, 11. 6-50; col. 2, 1. 65 to col. 3, 1. 40;
col. 5, 11. 15-50, 66-68; col. 6, 11. 1-23, 52-55; col. 6, 1. 65 to col. 7, 1. 17;
col. 8, 1. 62 to col. 9, 1. 2; col. 9, 11. 41-56). In particular, the Examiner finds
Meirowitz teaches that the use of surfactants to render polyester material
hydrophilic is known in the prior art-as in Goldman-and that
shortcomings with that particular method of hydrophilizing fibers-its
tendency to wash off of the polyester material-can be overcome by
contacting hydrophobic polyester fibers with a copolymeric material
comprising a generally hydrophobic moiety or segment and a generally
hydrophilic moiety and melt fusing the copolymer and fiber to provide a
hydrophilic surface on the fiber that is-being less fugitive and less likely to
wash off-more durable. Id.
The Examiner further finds the hydrophobic moiety of the copolymer
has physical characteristics (solubility and melting point) whereby the
copolymer associates with a portion of the fibers based on the physical
characteristic of the fibers and hydrophilizing agent and finds de facto that
the hydrophobic portions of the copolymer and polyester fiber that interact
are molecular complementary segments according to the claims. Ans. 4
(citing Meirowitz col. 6, 11. 52-55). As explained by the Examiner, the
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Appeal2014-002435
Application 13/115, 160
"copolymer is melt fused to the polyester fibers by contacting the copolymer
with the polyester at a temperature above its melting point" whereby the
hydrophobic portion of the copolymer dissolves in the polyester fiber and
"[t]he insoluble generally hydrophilic portions of the copolymer (non
complementary portions) do not dissolve in the polyester but tend to remain
on the surface" (Meirowitz col. 6, 1. 65 to col. 7, 1. 17), thus, providing the
hydrophilicity to the polyester fiber (Ans. 3--4).
The Examiner determines that Goldman, Meirowitz, and the invention
set forth in the claims are analogous as they pertain to fibrous structures
comprising hydrophobic fibers treated to have hydrophilic surfaces. Ans. 4.
The Examiner concludes it would have been obvious to one of
ordinary skill in the art to use Meirowitz's copolymer to make hydrophobic
polyester fibers hydrophilic by melt fusing the hydrophobic polyester fibers
with the copolymer in the process and absorbent products of Goldman in
order to obtain a hydrophilic surface that is less fugitive and less likely to
wash off. Ans. 4.
Appellants argue Goldman and Meirowitz fail to teach, disclose, or
suggest all elements of the claimed invention. Br. 10-13. Appellants first
contend generally that "Goldman fails to disclose those elements outlined in
the Office Action." Br. 11.
Appellants' general contention as to what is not taught, without
elaboration or specific criticism of the Examiner's detailed findings, is not a
cogent argument. Cf In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011)
("[W]e hold that the Board reasonably interpreted Rule 41.37 to require
more substantive arguments in an appeal brief than a mere recitation of the
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Application 13/115, 160
claim elements and a naked assertion that the corresponding elements were
not found in the prior art.").
Appellants then argue more particularly that Goldman fails to disclose
or suggest an aqueous slurry that comprises synthetic fibers, natural fibers,
and a hydrophilizing agent and that Goldman does not combine synthetic
fibers and a hydrophilizing agent in an aqueous slurry. Br. 11. Appellants
further argue that Goldman's teaching as to the wet-laid process relates only
to the overall acquisition layer and that it is but one of a number of processes
(Goldman col. 36, 11. 3-13) and that Meirowitz has no mention of a wet-laid
process. Br. 11-12.
We are not persuaded that the Examiner reversibly erred in rejecting
the '160 Application's claims. As discussed above, we determine the claims
as properly construed do not require that "it is in the aqueous solution that
the synthetic fibers and the hydrophilizing agent associate." In view of this
construction, Appellants' claims encompass a process in which a modified
polyester fiber comprising polyester fiber and hydrophilizing agent is
utilized in a wet-laid process. Because the Examiner found that the
combination of Meirowitz and Goldman describes or suggests such a
process, we are not persuaded by Appellants' argument that the Examiner
reversibly erred in so concluding. Cf In re Self, 671 F.2d 1344, 1348
( CCP A 19 82) (" [A ]ppellant' s arguments fail from the outset because ...
they are not based on limitations appearing in the claims."). Appellants'
further skeletal arguments as to Goldman's particular teaching of the wet-
laid process are not persuasive because it is well established that "it is proper
to take into account not only [the] specific teachings of the reference but also
the inferences which one skilled in the art would reasonably be expected to
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Application 13/115, 160
draw therefrom." Jn re Preda, 401F.2d825, 826 (CCPA 1968).
Appellants' arguments are also without merit because they fail to squarely
address the combination of Goldman and Meirowitz. In re Merck & Co.,
800 F.2d 1091, 1097 (Fed. Cir. 1986) ("Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.").
In further arguments that there is no prima facie case (Br. 13-15),
Appellants contend the Examiner has failed to set forth why one of ordinary
skill in the art would have combined Goldman and Meirowitz where
Meirowitz teaches away from such a combination and that the Examiner has
erred in determining Meirowitz' s copolymer meets the limitations required
of a hydrophilizing agent according to the claims.
Appellants' teaching away argument is grounded on the disclosure in
Meirowitz that surfactants are not preferred where Goldman relies on
surfactants for treating synthetic hydrophobic fibers. Br. 13-14. The
argument is wholly without merit where both are directed to treating
hydrophobic fibers to render the fibers' surface hydrophilic and Meirowitz is
specifically directed to overcoming shortcomings associated with the use of
surfactants. See, e.g., DyStar Textilfarben GmbH & Co. Deutschland KG v.
C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006) ("We will not read
into a reference a teaching away from a process where no such language
exists.").
As to Meirowitz' s copolymer, Appellants argue the Examiner has
failed to establish the copolymer would necessarily be a hydrophilizing
agent with a molecular complementary segment because it must be melt
fused to the polyester. Br. 14. Appellants argue the Examiner erred because
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Application 13/115, 160
heating to melt fuse the synthetic fiber and hydrophilizing agent is not a
limitation recited in the claim. Br. 14. Appellants' further arguments are
grounded on the claims requiring the hydrophilizing agent associating with
the synthetic fibers in an aqueous slurry. Br. 14-15.
Appellants' arguments are without persuasive merit because, as
explained by the Examiner (Ans. 6-8), melt fusing is not precluded and the
hydrophobic moiety of the copolymer of Meirowitz meets the limitations for
a molecular complementary segment. In particular, Appellants' arguments
fail to persuade us of reversible error because they are grounded on an
improperly narrow construction of the claims that would require association
of synthetic fibers and the hydrophilizing agent in the aqueous solution.
For the reasons above, it cannot be said that Appellants have shown
reversible error in the determination that one of ordinary skill in the art,
armed with the knowledge of the cited prior art, would have been led to the
subject matter recited in the appealed claims. See, e.g., In re Jung, 637 F.3d
1356, 1365 (Fed. Cir. 2011).
Accordingly, we will sustain the Examiner's rejection of claims 1-21.
CONCLUSION
The rejection of claims 1-21under35 U.S.C. § 103 is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 ).
AFFIRMED
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