Ex Parte Sroda et al

Board of Patent Appeals and Interferences

Dec 16, 2008

10444865 (B.P.A.I. Dec. 16, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte KIMBERLY-CLARK WORLDWIDE, INC.
____________________

Appeal 2009-0948
Application 10/444,865
Technology Center 3700
____________________

Decided: December 16, 2008
____________________

Before JAMESON LEE, RICHARD TORCZON, and SALLY C.
MEDLEY, Administrative Patent Judges.

LEE, Administrative Patent Judge.

DECISION ON APPEAL

A. STATEMENT OF THE CASE
This is a decision on appeal by the real party in interest, Kimberly-
Clark Worldwide, Inc. (KCW), under 35 U.S.C. § 134(a) from a final
rejection of claims 1-7 and 9-12. KCW requests reversal of the Examiner’s
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rejection of those claims. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm.

References Relied on by the Examiner
Butterworth 3,967,623 Jul. 6, 1976
Nozaki 4,883,709 Nov. 28, 1989
Hamajima 5,807,363 Sep. 15, 1998

The Rejections on Appeal
The Examiner rejected claims 1, 3-5, 7, and 12 under 35 U.S.C.
§ 103(a) as unpatentable over Hamajima and Nozaki.
The Examiner rejected claims 1, 2, 6, 9, and 10 under 35 U.S.C.
§ 103(a) as unpatentable over Butterworth and Nozaki.

The Invention
The invention relates to an absorbent article having a cover formed
from first and second layer portions. (Spec. pp. 1-2:¶ 4.)
Independent claim 1 is reproduced below (App. Br., Claims App’x
16:1-11):
1. An absorbent feminine care article, comprising

a liquid-permeable cover; and an absorbent member operatively
joined with said cover; wherein

said cover includes a hydrophilic, first layer portion operatively
joined with a relatively less-hydrophilic, second layer portion;

said second layer portion is positioned on a bodyside of said
article;

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said first layer portion is positioned between said second layer
portion and said absorbent member, said first layer portion is
laminated to said second layer portion; and

fibers of said first layer portion are hydroentangled with fibers
of said second layer portion.

B. ISSUE
Did the Examiner err in determining that the prior art would have
reasonably suggested to a person of ordinary skill in the art that a disposable
absorbent article can include a covering fabric formed by two fibrous layers
that are joined by hydroentangling one layer with the other?
C. FINDINGS OF FACT
1. Hamajima discloses a disposable absorbent article with a cover
formed by a first non-woven hydrophilic fabric that is joined to a second
non-woven hydrophobic fabric. (Hamajima 7:14-24.)
2. In Hamajima, both fabrics are disclosed as being fibrous. In
particular, the first hydrophilic layer may be made of rayon fibers
(Hamajima 7:17-19) and the second hydrophobic layer may be made of
polyester fibers. (Hamajima 7:24-27).
3. Nozaki discloses a composite non-woven fabric that has the
desirable characteristics of: 1) high stability and tensile strength such that it
resists deformation due to stretching, and 2) excellent “drape property” and
“feeling.” (Nozaki 2:16-20.)
4. Nozaki discloses that those characteristics render the fabric
useful as a cloth for disposable sheets and garments. (Nozaki 2:21-23.)
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5. In Nozaki, the fabric is formed from a substrate preferably
made of polyester fibers (Nozaki 2:57-63) and a sheet of cellulosic pulp
fibers, such as rayon, that is introduced onto the substrate as a monolayer or
multilayer (Nozaki 3:3-25.)
6. After introduction, the polyester fiber substrate and the rayon
fiber sheet are subjected to a fiber entanglement treatment by water jets, i.e.
hydroentanglement, “so as to combine the two components.” (Nozaki 3:25-
29.)
7. KCW’s specification identifies rayon as naturally hydrophilic
fibers that are used to form a hydrophilic, first layer portion. (Spec. 18:¶
77.)
8. KCW’s specification further discloses polyester fibers as
synthetic polymer fibers that are less-hydrophilic and are used to form a
less-hydrophilic, second layer portion. (Spec. 18:¶¶ 78 & 80.)
9. Butterworth discloses a disposable absorbent pad with
absorbent layer 12, a facing sheet 13, and an outer fibrous surface portion
14. (Butterworth 2:18-24.)
10. In Butterworth, the portion of facing sheet 13 facing absorbent
layer 12 is treated with a surface agent rendering it hydrophilic so as to
initiate liquid flow to layer 12. (Butterworth 3:22-27).
11. In Butterworth, the outer bodyside surface portion 14 is not
treated and remains substantially hydrophobic in order to have a
substantially dry contact surface between the wearer and the absorbent pad.
(Butterworth 3:16-19; 39-40.)
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D. PRINCIPLES OF LAW
A prior art reference must be considered for everything it teaches by
way of technology and is not limited to the particular invention it is
describing and attempting to protect. EWP Corp. v. Reliance Universal Inc.,
755 F.2d 898, 907 (Fed. Cir. 1985).
If a technique has been used to improve one device, and a person of
ordinary skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless its actual
application is beyond his or her skill. KSR Int’l Co. v. Teleflex Inc., 127
S.Ct. 1727, 1740 (2007).
In an obviousness analysis, it is not necessary to find precise teachings
in the prior art directed to the specific subject matter claimed because
inferences and creative steps that a person of ordinary skill in the art would
employ can be taken into account. Id. at 1741. A person of ordinary skill in
the art is also a person of ordinary creativity, not an automaton. Id. at 1742.
A basis to combine teachings need not be expressly stated in any prior art
reference. In re Kahn, 441 F.3d 977, 989 (Fed. Cir. 2006). There need only
be an articulated reasoning with rational underpinnings to support a
motivation to combine teachings. Id. at 988.
E. ANALYSIS
The Examiner rejected claims 1, 3-5, 7, and 12 under 35 U.S.C.
§ 103(a) as unpatentable over Hamajima and Nozaki and claims 1, 2, 6, 9,
and 10 under 35 U.S.C. § 103(a) as unpatentable over Butterworth and
Nozaki. KCW argues each ground of rejection separately.

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Claims 1, 3-5, 7, and 12 - Hamajima and Nozaki
Claims 3-5, 7, and 12 are argued collectively with claim 1. We focus
on the disputed limitations. KCW disputes that the combined teachings of
Hamajima and Nozaki satisfy the requirement of a “hydrophilic, first layer
portion operatively joined with a relatively less-hydrophilic, second layer
portion” where “fibers of said first layer portion are hydroentangled with
fibers of said second layer portion.” KCW contends that while Hamajima
discloses two layers, those layers are bonded through processes of thermal
fusing, embossing, or hot melting and not by hydroentanglement. (App. Br.
12:4-24).
The Examiner does not disagree with KCW as to the teachings of
Hamajima. The Examiner found that Hamajima discloses an absorbent
article that includes a hydrophilic first layer 221 and a relatively less
hydrophilic second layer 222. (Ans. 6:12-15) The Examiner determined
that Hamajima discloses all the limitations of claim 1 with the exception that
those layers are hydroentangled. (Ans. 6:16-17.) To remedy the deficiency,
the Examiner pointed to Nozaki as teaching the formation of a composite
fabric by hydroentangling two layers to form a composite fabric that has
improved stability and feel. (Ans. 5:2-4.) The Examiner explained: (Ans.
6:20 to 7:2):
It would have been obvious to one having ordinary skill in the art at
the time the invention was made to modify the invention of Hamajima
to have hydroentangled first and second layers for the benefits
disclosed in Nozaki.

KCW argues that a person of ordinary skill in the art would not have
looked to Nozaki’s hydroentangling technique to join Hamajima’s layers.
KCW contends that Nozaki is directed only “to a technique which employs
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hydroentangling jets to cause short fibers to fill the interstices of a
previously-hydroentangled base web to provide a reinforced composite
fabric.” (App. Br. 13:15-17) (emphasis in original.) According to KCW,
Nozaki’s hydroentangling technique produces only a reinforced composite
fabric and does not produce a hydrophilic first layer portion that is
“operatively joined” with a less-hydrophilic second layer portion. (App. Br.
9:7-14.) KCW further contends that the layers of Hamajima are in any event
unsuitable for employing Nozaki’s hydroentangling technique. (App. Br.
13:21-25.)
KCW’s arguments are not persuasive.
Hamajima discloses a disposable absorbent article with a cover
formed by a first non-woven hydrophilic fabric that is joined to a second
non-woven hydrophobic, i.e. less-hydrophilic, fabric. (Hamajima 7:14-24.)
Both fabrics are disclosed as being fibrous. In particular, the first
hydrophilic layer may be made of rayon fibers (Hamajima 7:17-19) and the
second hydrophobic layer may be made of polyester fibers. (Hamajima
7:24-27).
Nozaki discloses a composite non-woven fabric that has the desirable
characteristics of: 1) high stability and tensile strength such that it resists
deformation due to stretching, and 2) excellent “drape property” and
“feeling.” (Nozaki 2:16-20.) Those characteristics render the fabric useful
as a cloth for disposable sheets and garments. (Nozaki 2:21-23.) In Nozaki,
the fabric is formed from a substrate preferably made of polyester fibers
(Nozaki 2:57-63) and a sheet of cellulosic fibers, such as rayon fibers, that is
introduced onto the substrate as a monolayer or multilayer (Nozaki 3:3-25).
After introduction, the polyester fiber substrate and the rayon fiber sheet are
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subjected to a fiber entanglement treatment by water jets, i.e.
hydroentanglement, “so as to combine the two components.” (Nozaki 3:25-
29.)
A prior art reference must be considered for everything it teaches by
way of technology and is not limited to the particular invention it is
describing and attempting to protect. EWP Corp, 755 F.2d at 907. The
teaching value of Nozaki is not limited to filling interstices of a previously
hydroentangled web base. Nozaki expressly teaches that hydroentanglement
is a technique “to combine” two fibrous layers. Layers that are combined
are also joined. We reject KCW’s argument that Nozaki does not teach
operatively joining two layer portions.
If a technique has been used to improve one device, and a person of
ordinary skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless its actual
application is beyond his or her skill. KSR, 127 S.Ct. at 1740.
In light of the teachings of the prior art, a person of ordinary skill in
the art would have reasonably recognized that joining two fibrous layers,
such as those of Hamajima, by a known hydroentanglement technique, such
as that of Nozaki, produces a disposable fabric exhibiting the desirable
characteristics taught by Nozaki, i.e. high stability and excellent feeling.
KCW does not explain why the two layers in Hamajima that are made from
the same materials as the two layers in Nozaki, i.e. polyester fibers and
rayon fibers, would be “unsuitable” for hydroentangling. KCW has not
shown error in the Examiner’s rejection of claim 1 over the combined
teachings of Hamajima and Nozaki.
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We sustain the rejection of claims 1, 3-5, 7, and 12 under 35 U.S.C.
§ 103(a) as unpatentable over Hamajima and Nozaki.
Claims 1, 2, 6, 9, and 10 - Butterworth and Nozaki
Claims 2, 6, 9, and 10 are argued collectively within claim 1. KCW
disputes that the Butterworth and Nozaki combination satisfies the
requirement of a cover that includes a hydrophilic first layer portion
operatively joined with a less-hydrophilic second layer portion by
hydroentanglement.
The Examiner found that Butterworth discloses a “hydrophilic first
layer portion 13 operatively joined with a relatively less-hydrophilic, second
layer portion 14.” (Ans. 4:16-18.) The Examiner determined that
Butterworth does not disclose that those layers are hydroentangled. (Ans.
5:1.) To remedy the deficiency, the Examiner pointed to Nozaki as teaching
a composite fabric formed by hydroentangling two layers which has
improved stability and feel. (Ans. 5:2-4.) The Examiner explained (Ans.
5:4-6):
It would have been obvious to one having ordinary skill in the art at
the time the invention was made to modify the invention of
Butterworth to have hydroentangled first and second layers for the
benefits disclosed in Nozaki.

KCW argues that one of Butterworth’s layers is non-fibrous and
therefore a person of ordinary skill in the art would not expect that fibers of
a first layer portion would be hydroentangled with fibers of a second layer
portion. (App. Br. 6:16-18.)
Butterworth discloses a disposable absorbent pad with absorbent layer
12, a facing sheet 13, and an outer fibrous surface potion 14. (Butterworth
2:18-24.) The portion of facing sheet 13 facing absorbent layer 12 is treated
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with a surface agent rendering it hydrophilic so as to initiate liquid flow to
layer 12. (Butterworth 3:22-27). The outer bodyside surface portion 14 is
not treated and remains substantially hydrophobic in order to have a
substantially dry contact surface between the wearer and the absorbent pad.
(Butterworth 3:16-19; 39-40.) Butterworth does not disclose that both layers
are fibrous or that they are hydroentangled. The Examiner pointed to
Nozaki to cure those deficiencies.
KCW makes the same arguments about Nozaki that it asserted in the
context of the rejection based on Hamajima and Nozaki. For the same
reasons as those given above, we reject KCW’s limited view of the teachings
of Nozaki. Nozaki teaches that two fibrous layers may be operatively joined
by hydroentanglement. However, Nozaki does not expressly disclose the
hydrophilic characteristics of its layers.
KCW’s specification identifies rayon as naturally hydrophilic fibers
that are used to form a hydrophilic, first layer portion. (Spec. 18:¶ 77.) The
specification further discloses polyester fibers as synthetic polymer fibers
that are less-hydrophilic and are used to form a less-hydrophilic, second
layer portion. (Spec. 18:¶¶ 78 & 80.) Nozaki discloses two fibrous layers
made from the same materials as those described in KCW’s specification,
i.e. a layer of rayon fibers and a layer of polyester fibers. Thus, each layer
of Nozaki has the same hydrophilic or less-hydrophilic characteristics as the
corresponding materials described in KCW’s specification.
In an obviousness analysis, it is not necessary to find precise teachings
in the prior art directed to the specific subject matter claimed because
inferences and creative steps that a person of ordinary skill in the art would
employ can be taken into account. KSR, 127 S.Ct. at 1741. Indeed, a person
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of ordinary skill in the art is also a person of ordinary creativity, not an
automaton. Id. at 1742. Furthermore, a basis to combine teachings need not
be expressly stated in any prior art reference. In re Kahn, 441 F.3d 977, 989
(Fed. Cir. 2006). There need only be an articulated reasoning with rational
underpinnings to support a motivation to combine teachings. In re Kahn,
441 F.3d at 988.
The Examiner determined that a person of ordinary skill in the art
following the teachings of the Butterworth and Nozaki combination would
have modified Butterworth’s absorbent article to incorporate a cover made
of Nozaki’s hydroentangled rayon fiber and polyester fiber fabric. That
determination is reasonable because it takes into account how a person of
ordinary skill and creativity would have viewed the combined teachings of
the references in order to incorporate the desirable qualities of Nozaki’s
disposable fabric, i.e. high stability and excellent feeling, in the top sheet of
Butterworth’s disposable absorbent article.
Additionally, as disclosed in Butterworth, it is beneficial that the
hydrophilic layer be arranged facing absorbent member 12 to initiate fluid
flow to that member while the less-hydrophilic layer is arranged on a body-
side of the absorbent article to form a dry contact surface for the wearer.
(Butterworth 3:16-19, 22-23.) In light of Butterworth’s teachings, a person
of ordinary creativity would have oriented the fibrous layers of a fabric, such
as that of Nozaki, on an absorbent article, such as that of Butterworth, so that
the hydrophilic fibrous layer faces the absorbent member and the less-
hydrophilic fibrous layer faces the body of a wearer. In that orientation, the
fabric takes advantage of the known benefits disclosed in Butterworth and is
configured as required by the claims.
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For the foregoing reasons, KCW has not shown error in the
Examiner’s determination that claims 1, 2, 6, 8, and 10 are obvious in view
of the combined teachings of Butterworth and Nozaki.
We sustain the rejection of claims 1, 2, 6, 9, and 10 under 35 U.S.C.
§ 103(a) as unpatentable over Butterworth and Nozaki.
F. CONCLUSION
The Examiner did not err in determining that the prior art would have
reasonably suggested to a person of ordinary skill in the art that a disposable
absorbent article can include a covering fabric formed by two fibrous layers
that are joined by hydroentangling one layer with the other.
G. ORDER
The rejection of claims 1, 2, 6, 9, and 10 under 35 U.S.C. § 103(a) as
unpatentable over Butterworth and Nozaki is affirmed.
The rejection of claims 1, 3-5, 7, and 12 under 35 U.S.C. § 103(a) as
unpatentable over Hamajima and Nozaki is affirmed.

AFFIRMED

ack

cc:

KIMBERLY-CLARK WORLDWIDE, INC.
CATHERINE E. WOLF
401 NORTH LAKE STREET
NEENAH, WI 54956