Ex Parte Schroeder et al

Patent Trial and Appeal Board

Apr 26, 2016

12872190 (P.T.A.B. Apr. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/872, 190 08/31/2010
23556 7590 04/26/2016
KIMBERLY-CLARK WORLDWIDE, INC,
Patent Docketing
2300 Winchester Rd.
NEENAH, WI 54956
FIRST NAMED INVENTOR
Karyn Clare Schroeder
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.
64640160US02 3127
EXAMINER
PHILIPS, BRADLEY H
ART UNIT PAPER NUMBER
3778
MAILDATE DELIVERY MODE
04/26/2016 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 KARYN CLARE SCHROEDER, GARRY ROLAND
WOLTMAN, DAVID MARTIN JACKSON, DAVID
AR THUR FELL, KATHRYN LYNN VEITH, and
TAMMY JOY NETTEKOVEN
Appeal2014-004909
Application 12/872, 190
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
JACQUELINE T. HARLOW, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL
This is an appeal1under35 U.S.C. § 134 involving claims to an
absorbent composite with a resilient coform layer. The Examiner rejected
the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm.
1 Appellants identify the Real Party in Interest as Kimberly-Clark
Worldwide, Inc. (see Br. 1).
Appeal2014-004909
Application 12/872, 190
Statement of the Case
Background
Appellants' invention relates to "combining resilient coform with
other materials to deliver enhanced resiliency and absorbency properties"
(Spec. 2:27-30).
The Claims
Claims 1-19, 21, and 22 are on appeal. Independent claim 1 is
representative and reads as follows (emphasis added):
1. An absorbent composite disposed in an absorbent article
between a topsheet and a backsheet, the absorbent composite
compnsmg:
a first intake layer disposed between the topsheet and the
backsheet; and
a retention layer disposed between the topsheet and the
backsheet, wherein one of the first intake layer and the retention
layer includes a resilient coform material.
The Issues
A. The Examiner rejected claims 1-9, 11-19, and 21under35 U.S.C.
§ 103(a) as obvious over Zenker,2 Ko, 3 and Ng4 (Ans. 2-9).
B. The Examiner rejected claim 10 under 35 U.S.C. § 103(a) as obvious
over Zenker, Ko, Ng, and Makoui5 (Ans. 9-10).
2 Zenker et al., US 6,245,051 Bl, issued June 12, 2001.
3 Ko et al., US 2003/0113463 Al, published June 19, 2003.
4 Ng et al., US 2008/0119103 Al, published May 22, 2008.
5 Makoui et al., US 6,127,595, issued Oct. 3, 2000.
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Application 12/872, 190
C. The Examiner rejected claim 22 under 35 U.S.C. § 103(a) as obvious
over Zenker, Ko, Ng, and Keuhn6 (Ans. 10-11).
Because the same issue is dispositive for all three rejections, we will
consider them together.
The Examiner finds that Zenker discloses
an absorbent composite ( 48, 52) disposed in an absorbent article
between a topsheet (28) and a backsheet (30), the absorbent
composite comprising: a first intake layer (52) disposed between
the topsheet and the backsheet (Fig. 10, c. 27: 1-5; see also Fig.
3, Fig. 4); and a retention layer (48) disposed between the
topsheet and the backsheet (Fig. 3), wherein one of the first
intake layer and the retention layer includes a coform material ( c.
10: 40-50; c. 26: 1--40).
(Ans. 2-3.) The Examiner acknowledges that "Zenker does not disclose that
the intake layer and/or retention layer comprise a resilient coform layer,
which [A ]ppellant has given the special definition of a matrix of meltblown
fibers and an absorbent material" (id. at 5).
The Examiner concludes that it would have been obvious to "form the
absorbent fibrous web composite, and adjusting, varying and optimizing the
amounts of absorbent and thermoplastic fibers, as it is within the level of
ordinary skill to determine suitable amounts of absorbent fibers and
thermoplastic fibers, based on the desired absorbency and strength suitable
for the desired application" and to "modify the coform intake and retention
layers ( 48, 52) of Zenker by the ranges taught in Ko" (id. at 6). The
Examiner also concludes that it would have been obvious to "modify the
6 Keuhn, JR. et al., US 2003/0149411 Al, published Aug. 7, 2003.
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Appeal2014-004909
Application 12/872,190
thermoplastic composition of Ko according to the ranges taught in Ng" (id.
at 7).
The issue with respect to these rejections is: Does the evidence of
record support the Examiner's conclusion that Zenker, Ko, and Ng render
the claims prima facie obvious?
Findings of Fact
1. Zenker' s Figure 3 is reproduced below:
10
\
FIG. 3
Zenker' s Figure 3 shows an
article (10) [that] includes a backsheet layer (30); a liquid
permeable top sheet layer (28); and an absorbent structure (32)
sandwiched between the backsheet and topsheet layers. The
absorbent structure includes a retention portion ( 48) having a
first retention section ( 47) and a longitudinally opposed second
retention section ( 49). A liquid distribution, waist belt
component (52) has a belt first end region (54), a belt second end
region (56) and a belt medial region (58) interconnecting the belt
first and second end regions.
(Zenker Abstract; see also Ans. 2-3, 5.)
2. Zenker teaches that
[t]he absorbent body structure 32 can comprise a matrix of
hydrophilic fibers, such as a web of cellulosic fluff, mixed with
particles of high-absorbency material. In particular
arrangements, the absorbent body 32 may comprise a mixture of
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Appeal2014-004909
Application 12/872, 190
superabsorbent hydrogel-fonning particles and synthetic
polymer meltblown fibers, or a mixture of superabsorbent
particles with a fibrous coform material comprising a blend of
natural fibers and/or synthetic polymer fibers.
(Zenker 10:41--48; see also Ans. 2-3, 5.)
3. Zenker teaches that "[t]he distribution layer can be a coform,
a bonded carded web, an airlaid web or a wetlaid pulp structure composed of
natural and/or synthetic fibers" (Zenker 26:13-15; see also Ans. 2-3, 5).
4. Ko teaches a
web [that] may be a nonwoven web, for instance, and contains
about 25-100% by weight of absorbent and/ or other hydrophilic
fibers and about 0-75% by weight of thermoplastic fibers,
suitably about 50-100% by weight absorbent and/or other
hydrophilic fibers and about 0-50% by weight thermoplastic
fibers, desirably about 60-90% by weight absorbent and/or other
hydrophilic fibers and about 10--40% by weight thermoplastic
fibers.
(Ko ii 32; see also Ans. 5-6.)
5. Ko teaches that
[ w ]hen thermoplastic fibers are employed, they may include
meltblown fibers. The meltblown fibers may be formed from
thermoplastic polymers including, without limitation,
polyolefins, . . . Suitable polyolefins include without limitation
polyethylene, polypropylene, polybutylene, copolymers of
ethylene with other alpha-olefins, copolymers of propylene with
other alpha-olefins, copolymers of butylene with other alpha-
olefins, and combinations thereof.
(Ko ii 34; see also Ans. 5-6.)
6. Ng teaches that
[a ]lthough not necessarily required, linear polyethylene
"plastomers" are particularly desirable in that the content of a-
olefin short chain branching content is such that the ethylene
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Application 12/872, 190
copolymer exhibits both plastic and elastomeric characteristics-
i.e., a "plastomer." Because polymerization with a-olefin
comonomers decreases crystallinity and density, the resulting
plastomer normally has a density lower than that of polyethylene
thermoplastic polymers (e.g., LLD PE), but approaching and/or
overlapping that of an elastomer. For example, the density of the
polyethylene plastomer may be about 0.91 grams per cubic
centimeter (g/cm3) or less, in some embodiments from about 0.85
to about 0.88 g/cm3
(Ng ii 34; see also Ans. 6-7.)
7. Ng teaches that
[t]he propylene content of such copolymers may be from about
60 mole % to about 99.5 wt. %, ... The a-olefin content may
likewise range from about 0.5 mole% to about 40 mole%,
Although the density of the propylene-based polymer
employed in the present invention may vary, it is typically about
0.91 grams per cubic centimeter (g/cm3) or less, . . . The melt
flow rate of the propylene-based polymer may also be selected
within a certain range to optimize the properties of the resulting
elastic material.
(Ng ii 37; see also Ans. 6-7.)
8. Ng teaches that
[t]he strands and the meltblown web may contain a thermoplastic
elastomer, semi-crystalline polyolefin, or combinations thereof.
In one embodiment, the strands contain a thermoplastic
elastomer and the meltblown web contains a semi-crystalline
polyolefin. For example, the thermoplastic elastomer(s) may
constitute about 70 wt.% or more, in some embodiments about
80 wt. % or more, and in some embodiments, about 90 wt. % or
more of the strands, while the semi-crystalline polyolefin(s) may
constitute about 70 wt.% or more, in some embodiments about
80 wt. % or more, and in some embodiments, about 90 wt. % or
more of the meltblown web.
(Ng ii 45; see also Ans. 6-7.)
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Application 12/872, 190
9. The Specification teaches that
[a] s used herein, the term "resilient co form" generally refers to a
resilient coform nonwoven layer including a matrix of
meltblown fibers and an absorbent material, wherein the
meltblown fibers constitute from 30 wt% to about 99 wt% of the
web and the absorbent material constitutes from about 1 wt% to
about 70 wt% of the web, and further wherein the meltblown
fibers being formed from a thermoplastic composition that
contains at least one propylene/a-olefin copolymer having a
propylene content of from about 60 mole% to about 99.5 mole%
and an a olefin content of from about 0.5 mole% to about 40
mole%, wherein the copolymer further has a density of from
about 0.86 to about 0.90 grams per cubic centimeter and the
composition has a melt flow rate of from about 120 to about 6000
grams per 10 minutes, determined at 230°C in accordance with
ASTM Test Method 01238-E, although practical considerations
can reduce the high end melt flow rate range.
(Spec. 9: 17-29; see also Ans. 5.)
Principles of Law
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR!nt'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). "If a person of
ordinary skill can implement a predictable variation, § 103 likely bars its
patentability." Id. at 417.
Analysis
Claims 1-9, 11-19, and 21
We adopt the Examiner's findings of fact and reasoning regarding the
scope and content of the prior art (Ans. 2-13; FF 1-9) and agree that the
claims are obvious over Zenker, Ko, and Ng. We address Appellants'
arguments below.
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Application 12/872, 190
Appellants contend that
Ng teaches the use of a nonwoven laminate. The propylene/a-
olefin copolymer in Ng referenced by the Examiner are part of a
semi-crystalline polymer in the elastic strand layer that is
laminated to a nonwoven web facing to form a nonwoven
composite (See [0037], [0023] of Ng). This is a completely
different structure than a matrix of fibers and absorbent material
in the pending claims. Therefore, one skilled in the art would
[not] expect to combine the teachings of the non woven laminate
structure disclosed in Ng to provide a resilient co form for use in
an absorbent composite that achieve the desired results as
currently claimed.
(Br. 5.)
We are not persuaded. As the Examiner explains, "the [E]xaminer
relies on Ng for his teaching of a specific propylene/a-olefin range" (Ans.
11-12; FF 7-8). The Examiner further responds that
[i]n this case, there is instant motivation for combining the
propylene/a-olefin meltblown fiber of Ko with the propylene/a-
olefin ranges of Ng. Ng copolymerizes polypropylene with a-
olefin for producing a copolymer that exhibits both plastic and
elastomeric characteristics -- i.e. the qualities of a plastomer
[0024.] Since it is well known in the art of diapers to produce
meltblown fibers that are both processable (plastic) and
stretchable (elastomeric; see for example, 6362389,) it would be
obvious to one of ordinary skill in the art to modify the
propylene/a-olefin meltblown fiber of Ko with the propylene/a-
olefin ranges ofNg.
(Ans. 12-13; FF 6.) "Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references[]. [The reference] must be read, not in isolation,
but for what it fairly teaches in combination with the prior art as a whole."
In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
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Application 12/872, 190
The Examiner further noted that
Ng also uses his semi-crystalline propylene/a-olefin meltblown
to form an elastic web. Paragraph [0045,] which discloses elastic
strands laminated to a meltblown web, or a matrix of fibers (see
also US 5385775,) explicitly states that semi-crystalline
polyolefins such as they propylene/a-olefin meltblown "may
constitute about 70 wt. % or more, in some embodiments about
80 wt. % or more, and in some embodiments, about 90 wt.% or
more of the meltblown web." Thus, not only would it be obvious
to combine the meltblown of Ko with the ranges of Ng, but
[Appellants'] basis for unobviousness is directly refuted in Ng.
(Ans. 13; FF 8.) Accordingly, we agree with the Examiner that the
combined teachings of Zenker regarding an absorbent composite (FF 1-3),
of Ko regarding the ranges of percent weight of absorbent and fibers (FF 4-
5), and of Ng regarding the ranges of propylene and a-olefin content (FF 6-
8), would yield predictable results of an absorbent composite having a
resilient coform material as claimed.
Appellants do not contend that the Examiner erred in combining the
teachings of Zenker, Ko, and Ng, other than the reasons discussed above.
Conclusion of Law
The evidence of record supports the Examiner's conclusion that
Zenker, Ko, and Ng render claims 1, 17, 18, 19, and 21 prima facie obvious.
Appellants do not argue separately the claims for this obviousness rejection.
Therefore, claims 2-9 and 11-16 fall with claim 1.
Claim 10
Appellants contend that "Makoui fails to correct this deficiency" with
respect to Zenker, Ko, and Ng in regard to claim 1 (Br. 5). Having affirmed
the obviousness rejection of claim 1, over Zenker, Ko, and Ng for the
reasons given above, we therefore affirm the rejection of claim 10.
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Application 12/872, 190
Claim 22
Appellants contend that "[fJor at least the reasons stated above with
respect to the independent claims, Appellants submit that Zenker in view of
Ko and further in view of Ng and Keuhn does not render obvious claim 22"
(id.). Having affirmed the obviousness rejection of claim 21 over Zenker,
Ko, and Ng for the reasons given above, we therefore affirm the rejection of
claim 22.
SUMMARY
In summary, we affirm the rejection of claims 1, 17, 18, 19, and 21
under 35 U.S.C. § 103(a) as obvious over Zenker, Ko, and Ng. Claims 2-9
and 11-16 fall with claim 1.
We affirm the rejection of claim 10 under 35 U.S.C. § 103(a) as
obvious over Zenker, Ko, Ng, and Makoui.
We affirm the rejection of claim 22 under 35 U.S.C. § 103(a) as
obvious over Zenker, Ko, Ng, and Keuhn.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a).
AFFIRMED
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