Ex Parte Schlinz et al

Board of Patent Appeals and Interferences

Aug 31, 2011

10883378 (B.P.A.I. Aug. 31, 2011)

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.
10/883,378 06/30/2004 Daniel R. Schlinz 20,012 4300
23556 7590 08/31/2011
KIMBERLY-CLARK WORLDWIDE, INC.
Tara Pohlkotte
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
STEPHENS, JACQUELINE F
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
08/31/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte KIMBERLY-CLARK WORLDWIDE, INC.
__________

Appeal 2010-004167
Application 10/883,378
Technology Center 3700
___________

Before JAMESON LEE, RICHARD TORCZON, and SALLY GARDNER LANE,
Administrative Patent Judges.

LEE, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal by KIMBERLY-CLARK WORLDWIDE, INC.
(“Appellant”), under 35 U.S.C. § 134(a), from a final rejection of claims 1, 2, 4, 5,
8, 13, 15, 16, 18, 21, 22, 27, 29, 31, 34, and 35 pending in Application 10/883,378.
We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

Appeal
Applica

A
(Spec. 1
and 3, r
C
th
m
w
p
2010-0041
tion 10/88
ppellant’s
:5-12). A
eproduced
laim 1 is r
1.
oppo
ermoplast
aterial,
an ab
herein the
ulp fluff fi
67
3,378
invention
n embodim
below. (S
epresentat
An absor
sing first a
ic materia
sorbent co
absorbent
bers mixed
THE I
is directed
ent of the
pec. 5:7 a
ive and rep
bent struct
nd second
l, the seco
re located
core com
with sup
2
NVENTIO
to an abs
invention
nd 11).
Fi
laminate
section v
5:11). T
layers 20
20). Poi
outer lay
apertures
The bond
dimensio
(Spec. 12
roduced b
ure compr
layers, the
nd layer co
between t
prises a m
erabsorben
N
orbent lam
is shown
g. 1 is a to
50. (Spec
iew of the
he laminat
, 22 and a
nt bonds 2
ers 20, 22
of the cor
s 26 have
n” of abou
:4-8).
elow:
ising:
first laye
mprising
he first an
atrix of hy
t particles
inate, e.g.
by Appell
p plan view
. 5:7). Fig
laminate
e 50 inclu
core 24. (
6 directly
to one ano
e 24. (Sp
“a length
t 1 to 4 m
r comprisi
thermopla
d second l
drophilic w
, and
, for a diap
ant’s Figs.
of the
. 3 is cros
50. (Spec.
des outer
Spec. 11:
connect th
ther throu
ec. 14:28-3
in one
illimeters.
ng
stic
ayers,
ood
er.
1
s-

18-
e
gh
4).

Appeal
Applica

h
th
o
la
g
b
T
M
C
C
29). An
reprodu
2010-0041
tion 10/88
the fi
aving therm
e thermop
f the therm
yers throu
enerally ci
etween no

he Examin
cDowall
urro
urro also d
embodim
ced below
67
3,378
rst layer an
oplastic
lastic poin
oplastic p
gh the abs
rcular and
less than a
er relied u
U
U
iscloses a
ent of the
. (Curro 2
d the seco
point bond
t bonds ar
oint bonds
orbent cor
have a len
bout 1 up
THE P
pon the fo
S 6,362,3
S 6,830,80
n absorben
laminate 1
:60-63).
3
nd layer o
s therein,
e liquid st
operative
e and whe
gth in one
to no grea
RIOR AR
llowing p
89 B1
0 B2
Curro
t laminate
0 is shown
f the abso
wherein at
able, and a
ly join the
rein the po
dimensio
ter than ab
T
rior art ref
, e.g., for
by Curro
Fig
view of th
2:60-61).
section vi
(Curro 2:6
includes o
core 30. (
bonds 50
outer laye
through a
(Curro 5:
rbent struc
least a po
t least a p
first and s
int bonds
n ranging
out 4 mm
erences:
Mar. 2
Dec. 1
a diaper. (
’s Figs. 1
. 1 shows
e laminate
Fig. 2 sho
ew of the l
2-63). Th
uter layer
Curro 5:1
directly co
rs 20, 40 t
pertures of
18-23 and
ture
rtion of
ortion
econd
are
.
6, 2002
4, 2004
Curro 1:1
and 2,
a perspect
10. (Cur
ws a cross
aminate 1
e laminat
s 20, 40 an
7-18). Poi
nnect the
o one anot
the core 3
43-47).
8-
ive
ro
-
0.
e 50
d a
nt
her
0.
Appeal
Applica

T
Curro’s
roller 1
differen
not like
Consequ
the core
B
30 and b
form the
115. (C
30, the p
with the
about 0
2010-0041
tion 10/88
he laminat
Fig. 10, re
10 with pro
t propertie
wise displa
ently, the
30 and th
ecause the
ond the o
apertures
urro 5:43-
rotuberan
propertie
.003 inche
67
3,378
e 10 is for
produced
tuberance
s than the
ce and for
outer laye
ereby dire
protubera
uter layers
of the cor
47). Curr
ces 115 sh
s of the co
s and 0.02
med with
below. Th
s 115 and
core 30, th
m apertur
rs 20, 40 a
ctly melt-b
nces 115 s
20, 40 wi
e 30 or to
o states tha
ould have
re 30. (Cu
0 inches.
4
a thermal
e arrange
an anvil ro
e pressing
es within t
re pressed
onded to o
imultaneo
thin the ap
align the a
t, in order
a narrow
rro 7:12-2
(Id.).
roller arran
ment 108 i
ller 112 w
(Curro
All thr
the lam
betwee
(Curro
pressin
115 dis
portion
the ape
(Curro
outer la
of the pro
he outer la
together w
ne anothe
usly form
ertures, th
pertures w
to form th
width that
1). Curro
gement 1
ncludes a
ith a flat s
12:16-18
ee layers 2
inate 10 a
n the rolle
10:66-11:
g of the pr
places res
s of the co
rtures of t
6:59-67).
yers 20, 4
tuberance
yers 20, 4
ithin the
r. (Curro
the apertu
ere is no n
ith the pro
e aperture
is adjusted
prefers a w
08 shown
calender
urface.
and 50-52
0, 30, 40 o
re pressed
rs 110, 11
9). The
otuberanc
pective
re 30 to fo
he core 30
Because t
0 have
s 115 does
0. (Id.).
apertures
12:18-33)
res of the
eed to pre
tuberance
s of the co
in accord
idth betw
by
).
f

2.
es
rm
.
he

of
.
core
-
s
re

een
Appeal 2010-004167
Application 10/883,378

5

The dimensions of the protuberances 115 determine the dimensions of the
bonds 50. (Curro 7:9-17). Curro states that, in order to form a sufficiently large
bond 50, the protuberances 115 should have a length that offsets their narrow
width. (Curro 7:12-17). Curro prefers at least a 2:1 aspect ratio of length versus
width. (Curro 7:22-23).
In one embodiment, the laminate 10 is tensioned and thereby perforated.
(Curro 8:52-67). Specifically, the laminate 10 is tensioned orthogonally to the
lengths of the bonds 50, thereby fracturing the bonds 50 lengthwise to form the
perforations. (Id.). Curro states that bonds 50 with relatively high aspect ratios
form large perforations. (Curro 8:62-63).
Each of the outer layers 20, 40 may have its own plurality of layers and
bonds that hold those layers together. (Curro 7:57-60). These bonds typically
have a 1:1 aspect ratio, such that they resist fracturing when the laminate is placed
under tension. (Id.).
REJECTIONS ON APPEAL
Claims 1, 4, 5, 8, 13, 15, 16, 18, 22, 27, 29, 31, 34, and 35 were finally
rejected by the Examiner under 35 U.S.C. § 103 as unpatentable for obviousness
over Curro in view of McDowall.1
ANALYSIS
Claims 1 and 18 are the only independent claims. Each requires an
absorbent structure including point bonds that join first and second layers through
an absorbent core. Each also requires that “the point bonds are generally circular
and have a length in one dimension ranging between no less than about 1 up to no
greater than about 4 mm.”

1 The Examiner allowed claims 2 and 21 subsequent to filing of the Appeal Brief.
(Ans. 6).
Appeal 2010-004167
Application 10/883,378

6

The Examiner determined that Curro’s elliptically-shaped bonds 50
constitute generally circular bonds as claimed. According to the Examiner (Ans.
7:8-11):
[T]he term ‘generally circular’ allows the bond site to be not entirely
circular. The Examiner considers an elliptical shape to be generally
circular as opposed to a generally square shape. Therefore, an
elliptical bond site in itself would meet the broad claim limitation.

The Examiner also determined that, even assuming Curro’s elliptically-shaped
bonds 50 do not constitute “generally circular” bonds, the difference in bond shape
does not patentably distinguish the claimed invention over the prior art because the
record does not reveal any criticality of “generally circular” bonds. (Ans. 7:16-21).
We agree with both determinations of the Examiner.
A. Curro’s bonds 50 are “generally circular”
Claims are construed according to their broadest reasonable interpretation
consistent with the specification. In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989);
In re Prater, 415 F.2d 1393, 1404 (CCPA 1969).
Claims 1 and 18 require “generally circular” bonds with a length in one
dimension of about 1 to 4 millimeters. Appellant argues that “generally circular”
means circle-shaped but allows for imprecision. (Brief 4:24). Appellant’s
interpretation is not the broadest reasonable interpretation in light of the
specification. In that regard, we note that Appellant does not point out what
standard of precision is indicated or discussed in the specification.
The language “having a length in one dimension” within a certain range
does not limit the second dimension for a bond site. That means “generally
circular” is not necessarily a circle within the context of the claim. Rather, the
length in the second dimension is unrestricted so long as the overall shape in
combination with the 1 to 4 millimeter length in the first dimension is still
Appeal 2010-004167
Application 10/883,378

7

generally circular. In that context, it is reasonable to construe “generally circular”
to include a deformed or squashed circular shape such as an ellipse or an oval. We
so construe the term. It would be unreasonable to construe the range limitation in
one dimension to also apply to the second dimension and to further require the
length in two directions to be exactly the same subject to some unspecified
standard of precision.
Curro’s point bonds 50 are elliptical and therefore generally circular. (Curro
Figs. 1 and 3). Further, Curro’s point bonds 50 can have a width as great as 0.508
millimeters (disclosed as “0.020 inches”) and an aspect ratio as low as 2:1. (Curro
7:17-22). If a bond 50 is 0.508 millimeters wide and has an aspect ratio of 2:1, that
bond 50 has a length of 1.016 millimeters. Thus, Curro teaches generally circular
bonds with the length in at least one dimension between about 1 and 4 millimeters.
We note that Appellant has not presented any declaration evidence
demonstrating that to one with ordinary skill in the art “generally circular” has to
mean a circle except for minor imprecision in construction and does not cover an
ellipse or an oval. Mere argument of counsel cannot take the place of evidence
lacking in the record. Estee Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 595 (Fed.
Cir. 1997). Appellant’s view is excessively narrow.
We also note that the specification does not provide written description
support for circle-shaped bonds. Under 35 U.S.C. § 112, first paragraph, an
applicant must describe all of a claimed invention’s features, not just features that
would render the claimed invention obvious. In Lockwood v. American Airlines
Inc., 107 F.3d 1565, 1571-72 (Fed. Cir. 1997). The specification does not discuss
“circular” bonds. Figs. 1 and 12 illustrate bonds as mere dots. One with ordinary
skill in the art would not have reasonably discerned from the disclosure that the
Appeal 2010-004167
Application 10/883,378

8

bonds are necessarily circular in shape except for imprecision. Because of their
small size, the actual shapes of the dots in the Figures are uncertain.
B. A circle-shaped bond would have been obvious to a skilled artisan.
As discussed above, Appellant argues that claims 1 and 18 each requires a
circle-shaped bond of 1 to 4 millimeters in diameter. Even assuming arguendo
that Appellant is correct, we conclude that the difference between a circle-shaped
bond of 1 to 4 millimeters in diameter and Curro’s bond 50 does not provide a
sufficient basis of patentable distinction for the claimed subject matter. The record
does not show any critical significance for a circle-shaped bond of 1 to 4
millimeters in diameter. It also appears that nothing unexpected is provided by
such circle-shaped bonds.
Appellant argues that Curro teaches away from a circle-shaped bond of
about 1 to 4 millimeters in diameter and, more particularly, teaches away from
forming the bonds with an aspect ratio lower than 2:1 and a width greater than
0.508 millimeters. (Brief 5:28-6:5). Appellant’s argument is misplaced. Curro
does not teach away from any particular aspect ratio or width for bonds. Rather,
Curro teaches that a particular method of manufacturing that it employs uses
protuberances 115 with an aspect ratio no less than 2:1 and a width no greater than
0.508 millimeters, such that each protuberance 115 is thin enough to form an
aperture in the core 30 (i.e., to separate the core 30) when the outer layers 20, 40
are pressed together to form a bond 50 within that aperture. (Curro 7:9-30). A
person having ordinary skill in the art would appreciate that sizes and aspect ratios
may change depending on the equipment and materials used.
Claims 1 and 18, however, are directed to absorbent structures and are not
restricted to any particular method of manufacturing. Note that Curro’s particular
method is an improvement on a pre-existing method that did not use the same
Appeal 2010-004167
Application 10/883,378

9

protuberances to concurrently form the bond and bond-receiving apertures.
Rather, the pre-existing method pre-formed the bond-receiving apertures and then
aligned those apertures with bond-forming protuberances. (Curro 5:43-47). Thus,
there are manufacturing methods for which the described preferences on aspect
ratio and width are not pertinent.
Curro actually teaches that bonds with an aspect ratio of 1:1 (the aspect ratio
of a circle) have less problems with bond fracturing than those of higher aspect
ratios (Curro 7:57-60) and therefore suggests an advantage for a circle-shaped
bond. Curro also teaches that bonds require a sufficient surface area for proper
adhesion (Curro 7:12-17) and therefore suggests an advantage for bonds wider than
0.508 millimeters. Appellant’s argument that Curro teaches away from a circle-
shaped bond of about 1 to 4 millimeters in diameter simply has no merit.
For the foregoing reasons, we sustain the rejection of claims 1 and 18 as
unpatentable over Curro and McDowall.
The patentability of claims 4, 5, 8, 13, 15, 16, 22, 27, 29, 31, 34, and 35 is
not argued apart from claims 1 and 18. We therefore also sustain the rejection of
claims 4, 5, 8, 13, 15, 16, 22, 27, 29, 31, 34, and 35 over Curro and McDowall.
DECISION
The rejection of claims 1, 4, 5, 8, 13, 15, 16, 18, 22, 27, 29, 31, 34, and 35
under 35 U.S.C. § 103 as unpatentable for obviousness over Curro in view of
McDowall 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).
AFFIRMED