Ex Parte Popp et al

Patent Trial and Appeal Board

Dec 6, 2016

13187025 (P.T.A.B. Dec. 6, 2016)

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.
13/187,025 07/20/2011 Robert L. Popp 27839-3664 5422
45736 7590 12/08/2016
Christopher M. Goff (27839)
ARMSTRONG TEASDALE LLP
7700 Forsyth Boulevard
Suite 1800
St. Louis, MO 63105
EXAMINER
DULKO, MARTA S
ART UNIT PAPER NUMBER
1746
NOTIFICATION DATE DELIVERY MODE
12/08/2016 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):
uspatents @ armstrongteasdale.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT L. POPP, DEBRA DURRANCE, PAUL VanGOMPEL,
MICHAEL T. MORMAN, and PAUL M. LINKER1
Appeal 2015-006763
Application 13/187,025
Technology Center 1700
Before BRADLEY R. GARRIS, PETER F. KRATZ, and
AVELYN M. ROSS, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner’s
rejections under 35 U.S.C. § 103(a) of independent claims 1, 7, and 14 as
unpatentable over McCormack et al. (US 6,589,638 Bl; July 8, 2003) in
view of Sugita et al. (US 5,702,798; Dec. 30, 1997) and Allen et al. (US
5,647,864; July 15, 1997) and of dependent claims 2—6, 8—13, and 15—23 as
unpatentable over these references alone or in combination with additional
prior art. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
1 Kimberly-Clark Worldwide, Inc. is identified as the real party in interest.
App. Br. 1.
Appeal 2015-006763
Application 13/187,025
Appellants claim a method of making a mechanical fastening system
for an article comprising forming a nonwoven loop material from a drawn
nonwoven web and disposing the drawn nonwoven web of loop material on
a body-facing surface of a disposable absorbent article (e.g., a diaper)
(independent claims 1,7, and 14).
A copy of representative claim 1, taken from the Claims Appendix of
the Appeal Brief, appears below.
1. A method of making a mechanical fastening system for
an article, comprising:
forming an oriented nonwoven loop material from a
nonwoven web of substantially continuous fibers by drawing
the nonwoven web using an applied force to align a greater
number of the constituent fibers of the nonwoven web in a
machine direction and without substantial necking or gathering
of the nonwoven web in a direction perpendicular to the
machine direction; and
disposing the drawn nonwoven web on a body-facing
surface of a disposable absorbent article.
Appellants present the same arguments regarding the independent
claims and do not present separate arguments specifically directed to the
dependent claims (Amended Appeal Brief, dated February 10, 2015, (“App.
Br.”) 5—14). Therefore, we will focus on representative independent claim 1
with which the other claims on appeal will stand or fall.
We sustain the Examiner’s rejections for the reasons expressed in the
Final Action, the Answer, and below.
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Appeal 2015-006763
Application 13/187,025
ANALYSIS
The Examiner finds that McCormack’s web of loop material is not
disposed on the body-facing surface of the absorbent article as claimed but
that Allen discloses disposing loop material on either the outer (i.e. garment­
facing) surface or the body-facing surface of an absorbent article (Final
Action 4). The Examiner concludes that it would have been obvious to
dispose McCormack’s web of loop material on the body-facing surface of
the article “because reversing the position of the loop fastener is a well-
known technique in the art of diaper-making (Allen, Fig[s]. 7 and 8, C 12, L
60-64)” (Final Action 4—5).
Appellants argue McCormack teaches away from the Examiner’s
proposed combination by disclosing that providing loop material on the
entire garment-facing surface advantageously yields an almost infinite
number of positions for fastening with hook elements (App. Br. 11).
“A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.” In re Urbanski, 809 F.3d 1237,
1244 (Fed. Cir. 2016) (quoting In re Gurley, 27 F.3d 551, 553 (Fed. Cir.
1994)).
Appellants’ argument is not persuasive for multiple reasons.
First, Appellants do not explain why they believe McCormack would
discourage an artisan from making the proposed modification even if the
result were less than an almost infinite number of fastening positions. In this
regard, we emphasize that McCormack explicitly teaches “the loop fastener
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Appeal 2015-006763
Application 13/187,025
component may be substantially the entire backing to provide comfort,
protection and highly variable fit” (Abstract (emphasis added)), thereby
indicating that the loop material need not be disposed on the backing (i.e.,
the garment-facing surface).
Second, Appellants do not explain why the Examiner’s proposed
modification would eliminate the advantage of an almost infinite number of
fastening positions. This advantage seemingly would be retained by
reversing McCormack’s loop and hook dispositions, as proposed, whereby
the loop material would be disposed on the body-facing surface and the hook
material would be disposed on the entire backing (i.e., the garment-facing
surface).
Third, even if the modification eliminated the advantage of an almost
infinite number of fastening positions, the loss of an advantage or benefit
does not necessarily establish that an artisan would lack motivation to pursue
the modification. See Urbanski, 809 F.3d at 1243 (“[T]he Board properly
found that one of ordinary skill would have been motivated to pursue the
desirable properties taught by Wong, even at the expense of foregoing the
benefit taught by Gross.”). Here, an artisan would have been motivated to
dispose McCormack’s loop material on the body-facing surface and hook
material on the garment-facing surface in order to obtain an effective
fastening system having an adequate number of fastening positions as
evinced by Allen, even at the expense of foregoing the advantage of an
almost infinite number of fastening positions.
For the reasons stated above and given by the Examiner, Appellants
fail to show error in the rejections of the appealed claims.
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Appeal 2015-006763
Application 13/187,025
DECISION
The decision of the Examiner is affirmed.
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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