Ex Parte Quincy et alDownload PDFPatent Trial and Appeal BoardMay 6, 201613336168 (P.T.A.B. May. 6, 2016) Copy Citation 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. 13/336,168 12/23/2011 Roger Bradshaw Quincy III 64759536US01 8829 23556 7590 05/06/2016 KIMBERLY-CLARK WORLDWIDE, INC. Patent Docketing 2300 Winchester Rd. NEENAH, WI 54956 EXAMINER CABRAL, ROBERT S ART UNIT PAPER NUMBER 1618 MAIL DATE DELIVERY MODE 05/06/2016 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 ROGER BRADSHAW QUINCY III, BHALCHANDRA MADHAV KARANDIKAR, JOHN GAVIN MACDONALD, and TEUTA ELSHANI1 ________________ Appeal 2014-000186 Application 13/336,168 Technology Center 1600 ________________ Before ERIC B. GRIMES, JOHN G. NEW, and RICHARD J. SMITH, Administrative Patent Judges. NEW, Administrative Patent Judge. DECISION ON APPEAL 1Appellants state the real party-in-interest is Kimberly-Clark Worldwide, Inc. App. Br. 1. Appeal 2014-000186 Application 13/336,168 2 SUMMARY Appellants file this appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1–10 and 13–20. Specifically, claims 1, 2, 8–10, and 13–20 stand rejected as unpatentable under 35 U.S.C. § 102(b) as being anticipated by Kiel et al. (US 2004/0133141 A1, July 8, 2004) (“Kiel”) or, alternatively, as unpatentable under 35 U.S.C. § 103(a) as being obvious over Kiel. Claims 1–10 and 13–20 also stand rejected as unpatentable under 35 U.S.C. §103(a) as being obvious over the combination of Kiel, MacDonald et al. (US 2006/0137568 A1, June 29, 2006) (“MacDonald”), and Miller et al. (US 2009/0075060 A1, March 19, 2009) (“Miller”). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. NATURE OF THE CLAIMED INVENTION Appellants’ invention is related to an odor control layer for personal care products, including a first portion with a formulation of activated carbon and a second portion with a formulation of nanoparticle silver. The layer can be placed in personal care products, including diapers, training pants, absorbent underpants, adult incontinence products, or feminine hygiene products. The personal care product can include a liquid-permeable body-side liner, a liquid-impermeable outer cover affixed to the body-side liner, and an absorbent core disposed between the bodyside liner and the outer cover. Abstract. Appeal 2014-000186 Application 13/336,168 3 REPRESENTATIVE CLAIM Claim 1 is representative of the claims on appeal, and recites: 1. An odor control layer for personal care products comprising a first portion with a formulation of activated carbon and a second portion with a formulation of nanoparticle silver, wherein the layer is disposed in a personal care product selected from the group consisting of diapers, training pants, absorbent underpants, adult incontinence products, and feminine hygiene products, further comprising a plurality of first portions with a formulation of activated carbon and a plurality of second portions with a formulation of nanoparticle silver, the plurality of first portions and the plurality of second portions alternating across the odor control layer. App. Br. 7. ISSUES AND ANALYSES We do not agree with the Examiner’s conclusion that Kiel anticipates the claims on appeal. However, we agree with, and adopt, the Examiner’s findings and conclusion that the appealed claims are prima facie obvious over the cited prior art references. We address the arguments raised on appeal by Appellants below. A. Rejection of claims 1, 2, 8–10 and 13–20 under 35 U.S.C. § 102(b) or, alternatively, 35 U.S.C. § 103(a) over Kiel Issue Appellants argue the Examiner erred in finding Kiel teaches or suggests an odor control layer including a plurality of first portions with a formulation of activated carbon and a plurality of second portions with a formulation of nanoparticle silver, the plurality of first portions and the Appeal 2014-000186 Application 13/336,168 4 plurality of second portions alternating across the odor control layer, as recited in claim 1. App. Br. 3. Analysis Appellants argue Kiel teaches a wound compress that comprises a layer (12) that contains activated carbon, at least one other layer, such as a cover layer (14) for the layer (12) that contains the activated carbon, an absorbent layer (18), a layer (20) for protecting the clothing, or the like, and an antimicrobial agent, characterized by the fact that the antimicrobial agent is contained in the at least one additional layer (16). App. Br. 3–4 (citing Kiel Fig. 1). By way of contrast, Appellants argue, claim 1 recites an odor control layer including a plurality of first portions with a formulation of activated carbon and a plurality of second portions with a formulation of nanoparticle silver, the plurality of first portions and the plurality of second portions alternating across the odor control layer. Id. at 4. Appellants assert Kiel fails to teach a plurality of first portions with a formulation of activated carbon and a plurality of second portions with a formulation of nanoparticle silver, the plurality of first portions and the plurality of second portions alternating across the odor control layer. Id. at 5. The Examiner responds that a plurality of first portions and second portions alternating across the odor control layer is implicit in the teachings of Kiel. Ans. 2. The Examiner finds, by way of example, that Figures 1–3 of Kiel teach alternating layers of a plurality of second portions with a plurality of first portions, although the Examiner admits a plurality of first portions is not expressly illustrated. Id. However, the Examiner finds Kiel also teaches that “[a]ll of the embodiments of the invention illustrated in Appeal 2014-000186 Application 13/336,168 5 FIGS. 1 to 3 can be used on both sides.” Id. (quoting Kiel ¶ 25). The Examiner therefore finds any combination of figures 1–3 placed on either side would provide a plurality of first portions and plurality of second portions in alternating configuration. Id. The Examiner also finds Kiel explicitly teaches “the wound dressing of the invention may also be provided with additional functional layers.” Id. at 3 (quoting Kiel ¶ 29). We are not persuaded by Appellants’ arguments. Kiel teaches: All of the embodiments of the invention illustrated in FIGS. 1 to 3 can be used on both sides. The wound compress 10 shown in FIG. 4 comprises a flat structure 12 that contains the activated carbon and a cover layer 14 that covers this flat structure on both sides. On one side of the flat structure 12 that contains the activated carbon, a flat structure 16 that contains an antimicrobial agent is arranged between the flat structure 12 that contains the activated carbon and the cover layer 14. On the opposite side of the flat structure 12 that contains the activated carbon from the side covered by the layer 16 that contains the antimicrobial agent, an absorbent layer 18 and a clothing protection layer 20 are arranged between the flat layer 12 that contains the activated carbon and the cover layer 14. Kiel ¶ 25. Figure 4 of Kiel is reproduced below: Figure 4 depicts an embodiment of Kiel’s invention as described in paragraph [0025]. Appeal 2014-000186 Application 13/336,168 6 Figure 4 of Kiel depicts an embodiment in which the activated charcoal layer 12 (the “flat structure” in the parlance of Kiel) that is bordered on one side by, successively, an antimicrobial layer 16 and a cover layer 14. On the other side of the activated charcoal layer 12 is an absorbent layer 18 and a clothing protection layer 20. This teaching of Kiel does not, in and of itself, fully disclose the limitation of claim 1 reciting “further comprising a plurality of first portions with a formulation of activated carbon and a plurality of second portions with a formulation of nanoparticle silver, the plurality of first portions and the plurality of second portions alternating across the odor control layer,” as recited in claim 1, because it does not explicitly teach alternating the pluralities of the first and second portions. However, we find the opening sentence of paragraph [0025] of Kiel, which states “All of the embodiments of the invention illustrated in FIGS. 1 to 3 can be used on both sides” at least suggests that the elements may be repeated on each side of the invention, thus creating alternate layers. More importantly, we agree with the Examiner’s finding that Kiel also teaches: “Furthermore, the wound dressing of the invention may also be provided with additional functional layers.” Kiel ¶ 29. We agree with the Examiner that this statement of Kiel would suggest to an artisan of ordinary skill that the activated charcoal layer 12 and the adjacent antimicrobial layer 16 could be repeated in the invention, forming a pattern of alternating layers Appeal 2014-000186 Application 13/336,168 7 of a plurality of first portion (activated charcoal) and a second portion (silver nanoparticle) layers. 2 Consequently, although we do not agree with the Examiner’s conclusion that Kiel anticipates the claims, we do agree with the Examiner that the claims on appeal are obvious over Kiel. We consequently affirm the Examiner’s rejection of claims 1, 2, 8–10, and 13–20. B. Rejection of claims 1–10 and 13–20 under 35 U.S.C. § 103(a) over Kiel. MacDonald, and Miller Appellants rely upon the same argument in addressing the Examiner’s rejection of claims 1–10 and 13–20 as unpatentable over the combination of Kiel, MacDonald, and Miller. App. Br. 5. For the same reasons, we similarly affirm the Examiner’s rejection of claims 1–10 and 13–30. DECISION The Examiner’s rejection of claims 1, 2, 8–10, and 13–20 as unpatentable under 35 U.S.C. § 102(b) is reversed. 2 Kiel teaches: In a preferred embodiment of the invention, metals or metal ions are used as antimicrobial agents, and the use of silver or silver ions is especially preferred. In this regard, the antimicrobial agent may contain a silver zeolite, a crystalline material, such as silver zirconium phosphate, or even an amorphous, glassy compound that releases silver ions. Kiel ¶ 12. Appellants do not dispute the Examiner’s finding that Kiel thus teaches “a second portion with a formulation of nanoparticle silver” as recited in claim 1. Appeal 2014-000186 Application 13/336,168 8 The Examiner’s rejection of claims 1–10 and 13–20 as unpatentable under 35 U.S.C. § 103(a) 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation