Ex Parte Zhao et al

Patent Trial and Appeal Board

May 26, 2016

11714021 (P.T.A.B. May. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111714,021 0310512007
27752 7590 05/31/2016
THE PROCTER & GAMBLE COMPANY
Global Patent Services - Legal IP
Central Building, CS
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Jean Jianqun Zhao
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.
10741 2805
EXAMINER
HAND, MELANIE JO
ART UNIT PAPER NUMBER
3778
NOTIFICATION DATE DELIVERY MODE
05/31/2016 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):
centraldocket.im @pg.com
pair_pg@firsttofile.com
mayer.jk@pg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEAN JIANQUN ZHAO, JOHN RICHARD NOEL,
KAREN DENISE MCAFFRY, GARY WAYNE GILBERTSON,
BRIAN FRANCIS GRAY, and KEL YN ANNE ARORA
Appeal2014-006855
Application 11/714,021
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 appeal 1 under 35 U.S.C. § 134 involving claims to an
absorbent core for a disposable absorbent article. The Examiner rejected the
claims on the grounds of anticipation and obviousness. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.
1 Appellants identify the Real Party in Interest as The Procter & Gamble
Company (see Br. 1 ).
Appeal2014-006855
Application 11/714,021
Statement of the Case
Background
Appellants' invention "relates to absorbent cores for disposable
absorbent articles such as sanitary napkins and disposable diapers" (Spec. 1:
6-7).
The Claims
Claims 1-20 are on appeal. Independent claim 1 is representative and
reads as follows (emphasis added):
1. An absorbent core for a disposable absorbent article
comprising a topsheet, a backsheet, and said absorbent core,
said absorbent core comprising an absorbent core material
comprising a fibrous airlaid nonwoven web comprising
cellulosic fibers and having a first density, and comprising a
plurality of discrete out-of-plane deformations, said out-of-
plane deformations having a second density, wherein said
second density is less than said first density; wherein said
cellulosic fibers are capable of being integrated by inter-
entangling with said topsheet; and wherein said absorbent
core has a total thickness of less than about 5 mm.
The Issues
A. The Examiner rejected claims 1---6 under 35 U.S.C. § 102(a) and (e) as
being anticipated by Curro2 (Ans. 2--4).
B. The Examiner rejected claims 7-20 under 35 U.S.C. § 102(a) and (e)
as being anticipated by, or in the alternative, under 35 U.S.C. § 103(a) as
obvious over Curro (Ans. 4--7).
2 Curro et al., US 2006/0286343 Al, published Dec. 21, 2006.
2
Appeal2014-006855
Application 11/714,021
A. 35U.S.C.§102(a) and (e) over Curro
The Examiner finds that:
Curro discloses an absorbent core for a disposable absorbent
article, sanitary napkin 200, comprising a topsheet 206, a
backsheet 202 and said absorbent core 204 [0113], said absorbent
core comprising an absorbent core material comprising a fibrous
airlaid carded (and thus nonwoven) web comprising cellulosic
fibers and necessarily having a first density ([0112],[0117]) and
comprising a plurality of discrete out-of-plane deformations, i.e.
first and second regions 4, 6, respectively [0064], said out-of-
plane deformations 4 and 6 having a second density, wherein said
second density is less than said first density inasmuch as the
deformations are formed by tufting [0064]; wherein said
cellulosic fibers are, by nature of being formed into a web by
airlaying and carding, capable of being integrated by inter-
entangling with said top sheet [206]; and wherein said absorbent
core has a total thickness of less than about 5 mm inasmuch as
the nip rolls that engage the web have an engagement depth of
3 .4 mm and a tooth height of about 3. 7 mm and the nip rolls must
engage the entire depth of the web to form the regions 4 and 6
shown in the figures. Thus the thickness of the web prior to
formation of the deformations must be in the range of 3.4-3.7
mm. [0070],[0113],[0117]
(Ans. 2-3).
The issue with respect to this rejection is: Does the evidence of
record support the Examiner's finding that Curro anticipates claim 1?
Findings of Fact
1. Curro teaches
A fibrous web having a first surface and a second surface.
The fibrous web has a first region and at least one discrete second
region, the second region being a discontinuity on the second
surface and being a tuft comprising a plurality of tufted fibers
extending from the first surface. The tufted fibers define a distal
portion, the distal portion comprising portions of the tufted fibers
being bonded together. Bonding can be thermal melt-bonding.
3
Appeal2014-006855
Application 11/714,021
In another embodiment the second surface of the web can have
non-intersecting or substantially continuous bonded regions,
which also can be thermal melt-bonding.
(Curro Abstract; see also Ans. 2-3, 4--7.)
2. Curro teaches that "[f]or nonwoven precursor webs 20, the
precursor web can comprise unbonded fibers, entangled fibers, tow fibers, or
the like, as is known in the art for nonwoven webs" (Curro ,-r 28; see also
Ans. 2-3, 4--7).
3. Figure 3 of Curro is reproduced below:
Fig, 3
Figure 3 shows a "tufted precursor web 21" in which
on the side of tufted precursor web 21 associated with first
surface 12 of tufted precursor web 21, second regions 4 comprise
tufts 6, and each tuft 6 can comprise a plurality of tufted, looped,
aligned fibers 8 extending outwardly from first surface 12. Tufts
6 comprise tufts of fibers having a significant orientation in the
Z-direction, and each tuft 6 has a base 5 proximal to the first
surface 12 ....
(Curro ,-r 50; see also Ans. 2-3, 4--7.)
4
Appeal2014-006855
Application 11/714,021
4. Figure 19 of Curro is reproduced below:
.... .----Z08
Figure 19 shows
in partial cut away plan view a catamenial article, specifically a
sanitary napkin, having as one of its components a web 1 of the
present invention. In general, sanitary napkin 200 comprises a
backsheet 202, a topsheet 206 and an absorbent core 204
disposed between the topsheet 206 and backsheet 202 which can
be joined about a the periphery 210 . ... It is noted that web 1
can be used as, or as a component of, one or more of a backsheet,
absorbent core material, topsheet, secondary topsheet, or wing
material.
(Curro ii 113; see also Ans. 2-3, 4--7.)
5. Curro teaches that "[t]he web 1 so prepared is sealed to a
batting, which is a lofty, airlaid blend of carded fibers" (Curro ii 117; see
also Ans. 2-3, 4--7).
Principles of Law
Where, as here, the claimed and prior art products are
identical or substantially identical, or are produced by identical
or substantially identical processes, the PTO can require an
applicant to prove that the prior art products do not necessarily
or inherently possess the characteristics of his claimed product. .
5
Appeal2014-006855
Application 11/714,021
.. Whether the rejection is based on "inherency" under 35 U.S.C.
§ 102, on "prima facie obviousness" under 35 U.S.C. § 103,
jointly or alternatively, the burden of proof is the same, and its
fairness is evidenced by the PTO' s inability to manufacture
products or to obtain and compare prior art products.
In re Best, 562 F.2d 1252, 1255 (CCPA 1977).
Analysis
We adopt the Examiner's findings of fact and reasoning regarding the
scope and content of the prior art (FF 1-5) and agree that claim 1 is
anticipated by Curro. We address Appellants' arguments below.
We recognize, but are not persuaded by Appellants' contention that
"the Office has not shown wherein the out of plane deformations of the
absorbent core are capable of being integrated by inter-entangling with the
topsheet," (Br. 3) and that "Curro does not discuss inter-entangling between
layers and/or whether the layers are capable of being inter-entangled" (id. at
4).
We agree with the Examiner that:
The airlaying and carding processes involve an initial random
deposit of fibers on a surface with the assistance of an air stream
to form a web with tufts 6. The end position of the fibers is
random and can be vertical in orientation, as in those fibers
defining tufts 6 perpendicular to other fibers. If both the topsheet
web and the core web are both formed via these processes, which
is what Curro discloses in paragraph 0113, the airlaid webs
having vertical fibers are certainly capable of interentangling
with loose fibers from a web below that is formed in the exact
same manner.
(Ans. 8; FF 1-5.) The Examiner's rejection does not rely upon "conjecture,"
as argued by Appellants (see App. Br. 3), but rather on the broad language
"capable of being integrated by inter-tangling" that, when read in light of the
6
Appeal2014-006855
Application 11/714,021
Specification, encompasses the process of Curro (FF 1-5). Further, because
Curro teaches fibers that are arranged in the same manner as claimed, the
inherency doctrine properly applies.
To the extent that Appellants are arguing that there is some type of
structural difference between the claimed invention and Curro, the Examiner
has provided sufficient evidence to shift the burden to require Appellants to
provide evidence rebutting the inherency finding. See In re Best, 562 F.2d at
1255. Appellants have not provided any such evidence.
Accordingly, the evidence of record support the Examiner's finding
that Curro anticipates claim 1. Because the claims are not separately argued,
claims 2---6 fall with claim 1.
B. 35 U.S. C. § 102(a) and (e) over Curro, or in the alternative, 35 U.S. C.
§ 103(a) over Curro
The Examiner finds that "Curro discloses an absorbent core for a
disposable absorbent article, sanitary napkin 200, comprising a topsheet 206,
a backsheet 202 and said absorbent core 204 [0113], ... " (Ans. 4--5; see
also Ans. 6-7). The Examiner determines that:
With regard to the limitation "the out-of-plane deformations are
integrated by inter-entangling into the topsheet" the
deformations 4 and 6 are formed by entangling and tufting and
can be formed into the topsheet or core. This limitation
constitutes product-by-process claim language that is given little
patentable weight in an article claim and is considered to be
anticipated by or, alternatively, obvious over the article and
process of Curro.
(Id. at 5; see also id. at 7.)
7
Appeal2014-006855
Application 11/714,021
The issue with respect to this rejection is: Does the evidence of
record support the Examiner's finding that Curro anticipates claims 7 and
14, or in the alternative, that Curro renders the claims obvious?
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 41 7.
Analysis
Appellants contend that:
The Office has chosen to disregard this limitation as
"product-by-process claim language". Applicants respectfully
submit that the limitation stating that the out-of-plane
deformations are integrated into the topsheet represents a
structural characteristic and therefore should be given patentable
\'l1eight. Curro does not teach or suggest discuss inter=entangling
between layers and/or whether the layers are capable of being
interentangled.
(Br. 5.)
We agree with the Examiner that:
The limitation "out-of-plane deformations are integrated"
imparts structural limitation to the claim. The phrase "by inter-
entangling" imparts a limitation pertaining to how that
integration is achieved, which is a process limitation in a product
claim which bears little patentable weight in such a claim.
(Ans. 9; FF 1-5.) For the same reasons discussed above, because Curro
teaches fibers that are arranged in the same manner as claimed, the
inherency doctrine properly applies. In the alternative, because the fibers,
8
Appeal2014-006855
Application 11/714,021
the absorbent core, the topsheet, and the backsheet are familiar elements, we
conclude that implementing a predictable variation of the fibers as the
absorbent core does no more than yield predictable results of a disposable
absorbent article as claimed. See KSR, 550 U.S. at 416. Appellants do not
identify any secondary consideration with regard to this obviousness
rejection.
Accordingly, the evidence of record supports the Examiner's finding
that Curro anticipates claims 7 and 14, or in the alternative, that Curro
renders the claims obvious. Because the claims are not separately argued,
claims 8-13 fall with claim 7, and claims 15-2 0 fall with claim 14.
SUMMARY
In summary, we affirm the rejection of claim 1 under 35 U.S.C.
§ 102(a) and (e) as being anticipated by Curro. Claims 2---6 fall with claim 1.
We affirm the rejection of claims 7 and 14 under 35 U.S.C. § 102(a)
and (e) as being anticipated by, or in the alternative, under 35 U.S.C.
§ 103(a) as obvious over Curro. Claims 8-13 fall with claim 7 and claims
15-20 fall with claim 14.
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
9