Ex Parte Verboomen et al

Patent Trial and Appeal Board

May 30, 2018

13658868 (P.T.A.B. May. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/658,868 10/24/2012
23556 7590 06/01/2018
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
NEENAH, WI 54956
FIRST NAMED INVENTOR
Jason Andrew Verboomen
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.
64797580US01 4836
EXAMINER
DULKO, MARTA S
ART UNIT PAPER NUMBER
1746
NOTIFICATION DATE DELIVERY MODE
06/01/2018 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):
Kimberlyclark. docketing@kcc.com
Cindy.M.Trudell@kcc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JASON ANDREW VERBOOMEN, BRADLEY
WILLIAM SCHOON, JESSE PAUL SORENSON,
PAUL GEORGE MILBRODT, and BRIAN KEITH RHODES
Appeal2017-007765
Application 13/658,868 1
Technology Center 1700
Before ADRIENE LEPIANE HANLON, JEFFREY T. SMITH, and
BRIAND. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-6, 9, 11, 12, and 22. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant is the Applicant, Kimberly-Clark Worldwide, Inc., which
according to the Appeal Brief, is also the real party in interest. Appeal Br. 1.
Appeal2017-007765
Application 13/658,868
STATEMENT OF THE CASE2
Appellant describes the invention as relating to a method for
producing a pre-fastened adjustable pant-like disposable absorbent
undergarment. Spec. 2:22-23. Claims 1 and 9, reproduced below with
emphases added to certain key recitations, are illustrative of the claimed
subject matter:
1. A method of producing pre-fastened disposable garments,
compnsmg:
a. providing a moving web for use as a body panel;
b. attaching a fastener assembly to the moving web at
a fastener attachment station;
c. passing the moving web, with the fastener assembly
attached, downstream from the fastener attachment station to a
laser cutting station and cutting the moving web with a laser at a
position under the fastener assembly at the laser cutting station
to define a leading portion of the moving web and a trailing
portion of the moving web, such that the leading portion and
trailing portion remains bridged together by the fastener
assembly and wherein the laser cuts a depth into the fastener
assembly, without breaking the fastener assembly, when the
moving web is cut with the laser.
9. A method of producing pre-fastened disposable garments,
compnsmg:
a. providing a moving web for use as a body panel;
b. forming an altered area on the moving web at a web
altering station to define a leading portion of the moving web and
a trailing portion of the moving web connected at the altered area,
wherein the web altering station includes pressure bonding the
2 In this Decision, we refer to the Final Office Action dated June 17, 2015
("Final Act."), the Appeal Brief filed November 16, 2015 ("Appeal Br."),
and the Examiner's Answer dated December 23, 2016 ("Ans.").
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Application 13/658,868
moving web while maintaining the tensile strength of the moving
web,
c. attaching a fastener assembly to the moving web at a fastener
attachment station positioned downstream from the web altering
station;
d. passing the moving web, with the fastener assembly attached,
downstream from the fastener attachment station to a laser cutting
station and cutting the moving web with a laser at a position under
the fastener assembly at the laser cutting station to completely
separate the leading portion of the moving web and the trailing
portion of the moving web, such that the leading portion and
trailing portion remains bridged together by the fastener
assembly.
Appeal Br. 10-11 ( Claims App.).
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Mlinar et al. US 6,838,040 B2 Jan.4,2005
("Mlinar")
Heller et al. US 7,431,791 B2 Oct. 7, 2008
("Heller")
Femfors US 2001/0014798 Al Aug. 16, 2001
Guralski et al.
("Gural ski") US 2003/0135192 Al July 1 7, 2003
REJECTIONS
The Examiner maintains the following rejections on appeal:
Rejection 1. Claims 1-6, 9, 11, 12, and 22 under 35 U.S.C. § 103 as
unpatentable over Mlinar in view of Femfors and Guralski. Final Act. 2.
Rejection 2. Claims 9, 11, and 12 under 35 U.S.C. § 103 as
unpatentable over Heller in view of Mlinar. Id. at 4.
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Rejection 3. Claim 22 under 35 U.S.C. § 103 as unpatentable over
Heller and Mlinar and further in view ofFemfors and Guralski. Id. at 6.
ANALYSIS
Appellant presents separate arguments for rejection 1, claim 1 and
rejection 2, claim 9. We limit our discussion to those claims. For rejection
1, claims 2---6, 9, 11, 12, and 22 stand or fall with claim 1. For rejections 2
and 3, claims 11, 12, and 22 stand or fall with claim 9. 37 C.F.R.
§ 4I.37(c)(l)(iv) (2013).
Rejection 1. We review the appealed rejections for error based upon
the issues identified by Appellant and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to
identify the alleged error in the examiner's rejections."). After considering
the evidence presented in this Appeal and each of Appellant's arguments, we
are not persuaded that Appellant identifies reversible error as to this
rejection. Thus, we affirm the Examiner's rejection for the reasons
expressed in the Final Office Action and the Answer. We add the following
primarily for emphasis.
The Examiner rejects claims 1---6, 9, 11, 12, and 22 under 35 U.S.C.
§ 103 as unpatentable over Mlinar in view of Femfors and Guralski. Final
Act. 2. The Examiner finds that Mlinar "describes substantially all the
method steps of the instant claim 1, except for the step of cutting a depth
into the fastener assembly together with the step of cutting the web with
laser." Final Act. 2-3 (citing Mlinar). The Examiner finds, however, that
F emfors describes a method of making pre-fastened diapers comprising
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Application 13/658,868
forming a line of weakness on the fastener at the same time a separation line
is formed. Id. at 3 (citing Femfors). The Examiner also finds that Guralski
teaches that a "line of weakening" is well known in the art of diaper making
to thin the material. Id. ( citing Guralski). The Examiner determines that
Id.
[i]t would have been obvious to one ordinary skill in the art at
the time of the invention to have modified the method for
making diapers of Mlinar by forming line of weakness in the
fastener at the same time as cutting the web, as described by
F emfors, because it is well known in the art of diaper making to
preferably weaken the fastener. ...
Appellant argues that the Examiner has not established a reason to
modify Mlinar as suggested because, according to Appellant, Mlinar' s
fastener is applied to reinforce the web whereas the Femfors web is
ultimately severed across its line of weakening. Appeal Br. 4--5. Appellant
is correct that the F emfors line of weakening is "positioned directly above
the line of intended separation 6." Femfors ,r 30. Appellant's argument,
however, is unpersuasive of reversible error because the Femfors line of
weakening 6 (i.e., providing perforations or the like (Femfors ,r 12)) across
strip 5 (i.e., a fastener (id. at ,r 26)) is employed so that two of the
undergarments remain connected and adjacent to each other at least until the
final stage of the manufacturing process. At the final stage of manufacture,
strip 5 is severed at the line of weakening by longitudinal displacement. Id.
at ,r 43, Fig. 3. Alternatively, the strip 5 might not be severed until the
consumer separates an individual garment from a group of garments for use.
Ans. 3; Femfors ,r 12. Femfors is thus similar to Mlinar in that it makes use
of the fastener to hold the web together throughout much of the
manufacturing process. See, e.g., Mlinar 11: 1-5 ("The fastener members ...
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maintain the integrity of the web as it continues through the process.").
Appellant does not persuasively dispute the Examiner's stated rationales for
combining the teachings of Femfors and Mlinar. Final Act. 3; Ans. 3.
Because Appellant's argument does not identify error in the
Examiner's stated reason as to why a person of skill in the art would have
combined the cited teachings of Mlinar and Femfors and does not identify
any other error in the Examiner's rejection, we sustain the rejection.
Rejections 2 and 3. The Examiner rejects claims 9, 11, and 12 under
35 U.S.C. § 103 as unpatentable over Heller in view of Mlinar. Final Act. 4.
The Examiner rejects claim 22 under 35 U.S.C. § 103 as unpatentable over
Heller and Mlinar and further in view ofFemfors and Guralski. Id. at 6.
The Examiner finds that Heller teaches forming an altered area 31 (e.g., an
area where elastic is deactivated (Heller 7:14--32)) "to define leading and
trailing portions of the web .... " Final Act. 4 (citing Heller). The Examiner
finds that Heller also teaches that portions of the web are completely
separated at cut lines 34 and 32 so that portions of the web are bridged by
the fastener assembly. Id. The Examiner relies on teachings of Mlinar to
determine that it would have been obvious to modify the order of Heller's
process steps and that it would have been obvious to use a laser cutter. Id.
at 6.
Appellant argues that the Examiner erred because Heller does not
teach forming an altered area defining a leading portion and trailing portion
and then cutting the moving web to completely separate the leading portion
and trailing portion. Appeal Br. 6.
The Examiner annotated Figure IA, as reproduced below, by
indicating what the Examiner maps to claim 9 's recited "altered area,"
"trailing portion," and "leading portion." Ans. 4.
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Application 13/658,868
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Heller Figure IA shows a representative top view of a stream of workpieces
indicative of some methods of Heller's invention. Heller 6: 16-17.
The Examiner errs by construing claim 9 too broadly. Claim 9
requires that the recited "trailing portion" and recited "leading portion" (1)
be defined by the recited "altered area" and (2) be "connected at the altered
area." Appeal Br. 10-11 (Claim App.). The portions of web that the
Examiner identifies in the annotated Figure IA as being a "leading portion"
and "trailing portion" are both within what the Examiner identifies as the
altered area rather than having the leading portion and trailing portion be
both defined by and connected at the altered area.
Appellant annotates Heller Figure IA differently. Ans. 7.
Appellant's annotated Heller Figure IA is reproduced below.
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Application 13/658,868
Appellant's annotation of Figure IA indicates that Heller could have a
leading portion and trailing portion defined by and connected at deactivation
line 31 (i.e., the line the Examiner identified as the altered area in the Final
Office Action). Appellant is correct, however, that the Examiner has not
sufficiently explained how, in this scenario, Heller teaches "completely
separat[ing] the leading portion of the moving web and trailing portion of
the moving web .... " Appeal Br. 6 ( emphasis omitted). Rather, Heller
suggests that, although elastic is severed at deactivation line 31, the web is
not completely severed across its width at line 31. Heller 7: 14--43
(indicating that deactivation line does not extend to the outer edges of web);
see also Heller Fig. IA.
For these two rejections, the Examiner's does not make factual
findings concerning Mlinar, Femfors, or Guralski in a manner that would
cure the error discussed above. Final Act. 5-7; Appeal Br. 7-8.
Accordingly, we do not sustain these rejections.
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Application 13/658,868
DECISION
For the above reasons, we affirm the Examiner's rejections of
claims 1---6, 9, 11, 12, and 22 under 35 U.S.C. § 103 as unpatentable over
Mlinar in view ofFemfors and Guralski. We reverse the Examiner's
rejection of claims 9, 11, and 12 under 35 U.S.C. § 103 as unpatentable over
Heller in view of Mlinar, and we reverse the rejection of claim 22 under 35
U.S.C. § 103 as unpatentable over Heller and Mlinar and further in view of
F emfors and Guralski.
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
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