Ex Parte Popp et al

Patent Trial and Appeal Board

Apr 28, 2017

12615295 (P.T.A.B. Apr. 28, 2017)

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.
12/615,295 11/10/2009 Robert Lee Popp 64031070US15 1317
23556 7590 04/28/2017
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
NEENAH, WI54956
EXAMINER
KID WELL, MICHELE M
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
04/28/2017 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 PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT LEE POPP, JOSEPH DANIEL COENEN,
DAVID ARTHUR KUEN, CHRISTOPHER PETER OLSON,
and SHAWN AHMED QUERESHI
Appeal 2015-004494
Application 12/615,295
Technology Center 3700
Before: CHARLES N. GREENHUT, LISA M. GUIJT, and
GORDON D. KINDER, Administrative Patent Judges.
KINDER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1—
20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2015-004494
Application 12/615,295
CLAIMED SUBJECT MATTER
The claims are directed to a prefastened and refastenable pant with
desired waist and hip fit. Claims 1,19, and 20 are independent. Claim 1,
reproduced below, illustrates the claimed subject matter:
1. A prefastened and refastenable pant, comprising:
a chassis including a composite structure having linear
side edges, the chassis defining a first waist region having
opposed elastomeric side panels attached to the composite
structure and extending transversely beyond the linear side
edges, an opposite second waist region, a crotch region disposed
between and interconnecting the waist regions, and a
longitudinal centerline, the waist regions together defining a
waistband and a hip section;
at least one first fastening component disposed in the first
waist region;
at least one second fastening component disposed in the
second waist region and adapted to refastenably engage the first
fastening component; and
a retractive material disposed in at least the waistband, the
retractive material being adapted to be activated by retracting
upon the application of energy;
wherein the pant is folded through the crotch region and
folded through the opposed side panels so that portions of the
waist regions overlap, the first and second fastening components
are engaged with one another to maintain the pant in a
prefastened condition, and the pant has a waistband-to-hip
circumference ratio of about 95 percent or less which results
from activation of the retractive material after the fastening
components are engaged to one another.
The prior art relied upon by the Examiner in rejecting the claims on
REFERENCES
appeal is:
Koch
Kievit
US 3,912,565
US 4,515,595
Oct. 14, 1975
May 7, 1985
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Appeal 2015-004494
Application 12/615,295
Kline US 5,897,545 Apr. 27, 1999
REJECTIONS
Claims 1—20 are rejected under pre-AIA 35 U.S.C. § 102(b) as being
anticipated by Kline.
OPINION
Appellants make a single argument for reversing the anticipation
rejection of claims 1—20. Appellants argue:
Kline has not been shown to disclose, teach, or suggest a
retractive material adapted to be activated by retracting upon the
application of energy per claim 1, and specifically no teaching of
a retractive material adapted to be activated by retracting from
electromagnetic radiation per claim 20.
Appeal Br. 3. After admitting that Kline teaches a retractive material by
disclosing rubber and by incorporating Kievet which discloses retractive
materials, Appellants continue, “neither Kline nor Kievet teach a retractive
material adapted to be activated by retracting upon the application of energy
for use in the waistband.” Id. Appellants then repeat the sentence quoted
above. Id. at 3^4.
The Examiner answers that Kline discloses the same material that
Appellants disclose as an acceptable retractive material for use in their
invention. Ans. 6.
Kline discloses the use of elastomeric materials (col. 11, lines
64—66) and further states that the suitable elastomeric materials
for the element designated as the retractive material (34) are
further described with respect to extensible ear panels 62 and 64
(col. 12, lines 6—8). Regarding the ear panels 62 and 64, Kline
describes a styrene block copolymer as being suitable as set forth
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Appeal 2015-004494
Application 12/615,295
in col. 15, lines 38-40. As such, Kline provides the very same
type of suitable retractive material as set forth in the instant
application and the material will therefore also be fully capable
of being adapted to activate by retracting upon the application of
energy, as claimed.
Id\ see also Final Act. 4. Kline incorporates by reference Kievet which
teaches heat activated elastic waist elements. Kievet 8:3—22.
We agree with the Examiner that Kline discloses “a retractive material
(34) disposed in at least the waistband and being fully capable of performing
the recited function” as claimed. Final Act. 3. The Specification identifies
elastomers useful in retractive materials. “Suitable elastomeric
thermoplastic polymers include styrene block copolymer such as, for
example, those available under the trademark KRATON® from Shell
chemical Company of Houston Texas USA.” Spec. 7:7—10. Kline discloses
an identically described elastomer which the Examiner finds meets the
limitations of claim 1: “Examples of suitable elastomeric films include
Clopay 2870, a styrene block copolymer available from Clopay Corporation
of Cincinnati Ohio and Exxon 550 available from the Exxon chemical
Company of Lake Zurich Illinois.” Klein 15:38-42. Kievet is incorporated
by reference into Klein and discloses waistband materials that contract upon
heating. Kievet 8:3—22. This disclosure meets the limitation in claims 1 and
19 for “retracting upon the application of energy” (Appeal Br. 5,7 (Claims
App’x.)) and the limitation in claim 20 for “retracting upon the application
of energy from electromagnetic radiation”1 (id. at 8 (Claims App’x.)). In
1 The Examiner correctly found (Final Act. 5; Ans. 6) that heat may be
transferred as electromagnetic radiation. See, e.g., Radiation Heat Transfer:
A Statistical Approach, Vol. 1, James Robert Mahan, John Wiley & Sons,
2002 (ISBN 0-471-21270-9), p. 5 (“[RJadiation heat transfer does not
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Appeal 2015-004494
Application 12/615,295
view of the identical disclosure in Kline of a styrene block copolymer used
for the same purpose in a similar product, and that these materials may be
made to contract through the application of energy, including
electromagnetic radiation, we are not persuaded by Appellants’ naked
assertion that Kline does not show a retractive material adapted to be
activated by retracting upon the application of energy per claims 1 and 19 or
upon the application of electromagnetic radiation per claim 20. As the
Examiner has established a sound basis for believing polymers to be
identical, and thus to exhibit identical properties, the burden shifts to
Appellants to overcome, with argument or evidence, the apparent identity of
Appellants’ claimed subject matter and that of the prior art. In re Spada, 911
F.2d 705, 708—709 (Fed. Cir. 1990). Here, Appellants’ argument is really
nothing more than a general denial that the claim limitation at issue was to
be found in the cited reference. 37 C.F.R. § 41.37(c)(l)(vii) requires more
substantive arguments in an appeal brief than a mere recitation of the claim
elements and a naked assertion that the corresponding elements were not
found in the prior art. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011). Although we have considered the Appellants’ position as stated in
their Appeal Brief, we find it unsupported and unpersuasive in the
unchallenged light of the Examiner’s Final Rejection and Answer.
DECISION
The Examiner’s rejection of claims 1—20 is affirmed.
require the presence of an intervening medium. Rather heat is transferred
from the warmer body to the cooler body by electromagnetic radiation.").
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Appeal 2015-004494
Application 12/615,295
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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