Ex Parte Van Bavel et al

Patent Trial and Appeal Board

Aug 18, 2016

12663860 (P.T.A.B. Aug. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/663,860 04/15/2010
81029 7590 08/22/2016
A very Dennison Corporation
Brian G. Bembenick
8080 Norton Parkway, 22D
Mentor, OH 44060
FIRST NAMED INVENTOR
Davy Van Bavel
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.
4211-US; AD2009000757 8118
EXAMINER
BROWE, DAVID
ART UNIT PAPER NUMBER
1617
NOTIFICATION DATE DELIVERY MODE
08/22/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
patentdocket@averydennison.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DA VY VAN BA VEL, COLLEEN WARD, and
ANNE MARIE PAULE WIBAUX
Appeal2014-009193
Application 12/663,860 1
Technology Center 1600
Before LORA M. GREEN, ULRIKE W. JENKS and DAVID COTTA,
Administrative Patent Judges.
COTT A, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an
underarm patch that is adapted to receive perspiration and control malodors
associated therewith. The Examiner rejected the claims on appeal as
obvious under 35 U.S.C. § 103(a).
We reverse.
1 According to Appellants, the real party in interest is A very Dennison
Corporation. App. Br. 1.
Appeal2014-009193
Application 12/663,860
STATEMENT OF THE CASE
Claims 1-14 are on appeal. Claim 1, the only independent claim, is
illustrative and reads as follows:
1. An underarm patch that is adapted to receive perspiration
and control malodors associated therewith, the patch
compnsmg:
a skin-adherent adhesive layer including a pressure
sensitive adhesive and at least one odor-control agent
comprising cyclodextrin;
a flexible backing layer; and
a fluid-absorbent pad that overlies at least a portion of the
skin-adherent adhesive layer.
The Examiner rejected claims 1-14 under 35 U.S.C. § 103 as being
unpatentable over the combination of Lipman 2 and Trinh. 3
The Examiner found that Lipman disclosed a skin-adherent adhesive
layer, a flexible backing, and a fluid-absorbent pad. Ans. 3. The Examiner
concluded that the term "overlies" in claim 1 depended on the "arbitrary"
designation of which side is "up" and, thus, determined that claim 1 permits
the fluid-absorbent pad to be placed on either side of the skin-adherent
adhesive layer. Id. at 6. Additionally, the Examiner found that Lipman did
not restrict the placement of the fluid absorbent pad, "and thus the 'fluid
absorbent pad' could be placed to 'overlie' the skin-contacting side or the
backing side, or both sides, of the 'skin-adherent adhesive layer."' Id. at 6-
7.
2 Lipman, U.S. Patent Publication No. 2004/0241215 Al, published Dec. 2,
2004 ("Lipman").
3 Trinh et al., U.S. Patent No. 5,429,628, issued July 4, 1995 ("Trinh").
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Appeal2014-009193
Application 12/663,860
The Examiner acknowledged that Lipman does not disclose that
cyclodextrin was present in the skin-adherent adhesive layer, but found that
Trinh taught this feature. The Examiner concluded:
Since Trinh et al. disclose that cyclodextrin is a very effective
odor absorber, and can be incorporated into articles that absorb
body fluids for the purpose of minimizing odor caused by body
fluids, one of ordinary skill would be motivated to incorporate
cyclodextrin into Lipman's patch for absorbing body fluids,
with the reasonable expectation that the resulting patch will
thus successfully minimize the odor caused by the absorbed
body fluids.
Id. at 4--5.
Appellants contend that the phrase "a fluid-absorbent pad that overlies
at least a portion of the skin-adherent adhesive layer" should be interpreted
to require that the fluid-absorbent pad be located "between the skin (or
release liner before application) and the skin adherent adhesive layer."
Reply Br. at 3. Appellants then argue that the fluid-absorbent pad in Lipman
is not located between the skin and the "skin-adherent adhesive layer," and
thus does not "overlie" the "skin-adherent adhesive layer." Id.
Appellants also contend that it would not have been obvious to
incorporate cyclodextrin in the skin-adherent adhesive layer. Appellants
argue that "[b ]ased on the teaching of Trinh, one skilled in the art would
likely incorporate cyclodextrin into a substrate layer such as the occlusive
top layer, not into any of the adhesive layers of the occlusive dressing."
App. Br. 13.
ANALYSIS
We begin by construing the claims. The Examiner contends that the
term "overlies" is a "relative term" that is not defined by the claim or the
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Appeal2014-009193
Application 12/663,860
specification and that application of the term depends on the "arbitrary
designation of which side of the patch is 'up."' Ans. 6. We disagree.
During prosecution before the PTO, claim terms are given their
broadest reasonable interpretation consistent with the specification, reading
claim language in light of the specification as it would be interpreted by one
of ordinary skill in the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d
1359, 1364 (Fed. Cir. 2004). Here, the term "overlies" defines the position
of the "fluid-absorbent pad" relative to the "skin adhesive layer." While the
Examiner is correct that the application of the term "overlies" depends on
which side is "up," the designation of which side is "up" is not arbitrary. In
the pending application, the claimed patch has a side that faces the skin and
a side that face outward. Even under the broadest reasonable interpretation,
both sides cannot be "up."
Figure 7 of the pending application illustrates the relative position of
the iayers that make up the claimed patch, thus providing guidance as to
which side is considered "up." Figure 7 (as annotated by Appellants) is
reproduced below.
/,,,,, 66 Release Lner ,_ _____________ _.., ... -·...-
'~""AA'"'-~ 63
""·'"""" 64
Reply Br. 2.
Odor rDntrol adhe'ii>,•e
layt:•r
Presstire Sensitive Adhesive
Backing Laver
The Specification describes Figure 7 as follows:
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Appeal2014-009193
Application 12/663,860
Referring to FIGS. 6 and 7, an embodiment of the under arm
patch 60 having an odor-control adhesive layer 62 overlying a
pressure sensitive adhesive layer 63, which is adhered to
backing layer 64 is illustrated. Overlying a portion of odor-
control adhesive layer is a fluid-absorbent pad 61.
Id. at 12. In the above passage, the term "overlying" is used to indicate that
one layer is positioned above or on top of another layer, with the top being
the skin facing side. 4 This is consistent with how the term "overlying" is
used throughout the Specification. See, e.g., id. at 11 (similarly describing
the layers depicted in Figures 4 & 5). Accordingly, we construe the phrase
"a fluid-absorbent pad that overlies at least a portion of the skin-adherent
adhesive layer" to require that the fluid-absorbent pad be positioned above
and on the skin-facing side of the skin-adherent adhesive layer.
Lipman discloses a dressing system for wounds including an "adjunct
moisture absorbing layer" (which the Examiner contends corresponds to the
claimed "fluid absorbent pad") and a "fluid absorbing pressure-sensitive
adhesive layer" (which the Examiner contends correspond to the claimed
"skin-adherent adhesive layer"). Ans. 6. In the embodiments disclosed in
Lipman, the adjunct moisture absorbing layer is not positioned above and on
the skin-facing side of the adhesive layer. See, e.g., if 83-84; see also Fig 2
and accompanying description at if 98. 5
4 The topmost layer in the patch of Figure 7 is the "release liner" (element
66). The "release liner" is a removable layer that protects the adhesive layer
prior to use. Specification 6, 12. A person of ordinary skill in the art would
understand the release liner to be positioned on the skin-contacting side of
the patch.
5 Note that the "occlusive layer" in Lipman is the outer layer, not the skin-
facing layer. See if 73 (discussing coloring of the occlusive layer - an
attribute that would be of little relevance to an inwardly facing layer).
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Appeal2014-009193
Application 12/663,860
The Examiner contends that it would have been obvious that
Lipman's "adjunct moisture absorbing layer" could be placed on either side
of the adhesive layer. However, the only rational provided by the Examiner
for modifying Lipman so that the "adjunct moisture absorbing layer"
overlies rather than underlies the adhesive layer is that "the 'fluid absorbent
pad' will function just the same to absorb fluid whether it's placed on the
skin-contacting side or the backing side, or both sides, of the 'skin-adherent
adhesive layer."' Ans. 7. Moreover, the Examiner does not address the
problem identified by the Appellants that placing adjunct moisture absorbing
layer so that it overlies the adhesive layer could potentially inhibit the ability
of the adhesive layer to bind the skin. Reply Br. 3. We find that the
Examiner's articulated rational does not provide sufficient reason to
reposition Lipman's "adjunct moisture absorbing layer" to support a finding
of obviousness. Accordingly, we reverse the Examiner's rejection of claims
1-14 as obvious over the combination of Lipman and Trinh.
SUMMARY
For the reasons set forth herein, the Examiner's rejection of claims 1-14
under 35 U.S.C. § 103(a) is reversed.
REVERSED
6