Ex Parte Zhou et al

Patent Trials and Appeals Board

Jun 28, 2019

13195986 - (D) (P.T.A.B. Jun. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/195,986 08/02/2011
23556 7590 07/02/2019
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
NEENAH, WI 54956
FIRST NAMED INVENTOR
Peiguang Zhou
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.
64654342US01 2991
EXAMINER
SHUKLA, KRUPA
ART UNIT PAPER NUMBER
1787
NOTIFICATION DATE DELIVERY MODE
07/02/2019 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
Tisha.Sutherland@kcc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PEIGUANG ZHOU, JUN ZHANG,
ANDREW MARK LONG, and KAIYUAN YANG
Appeal2018-003224
Application 13/195,986
Technology Center 1700
Before KAREN M. HASTINGS, N. WHITNEY WILSON, and
LILAN REN, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner's
October 22, 2014 decision finally rejecting claims 1 and 3-15 ("Final Act.").
We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We reverse.
1 Appellants identify Kimberly-Clark Worldwide, Inc., as the real party in
interest (Appeal Br. 1 ).
Appeal2018-003224
Application 13/195,986
CLAIMED SUBJECT MATTER
Appellants' disclosure relates to a cooling signal device, which can be
used in garments like training pants to provide the wearer with a noticeable
cooling sensation upon fluid introduction (Spec. 1 ). The signal device
includes a signal composite that is made with a coextruded film having two
layers: (1) a first polymer skin layer; and (2) a stimulation layer (Spec. 2).
The stimulation layer includes a first cooling agent and a polymer binder
(id.). The stimulation layer is about 50 to 98 percent by weight of the signal
composite (id.). Claim 1 is representative of the invention and is reproduced
below from the Claims Appendix to the Appeal Brief (emphasis added):
1. A signal device comprising;
a signal composite that comprises a coextruded film
having two layers, a first polymer skin layer comprising a
water-soluble polymer and/or a water swellable polymer, and a
stimulation layer comprising a first cooling agent and a polymer
binder; wherein the stimulation layer comprises 50 to 98
percent by weight of the signal composite.
REJECTIONS
1. Claims 1, 3-10, and 12-15 are rejected under 35 U.S.C. §102(b)
as anticipated by Kao2, in view of evidence shown by Elliott. 3
2 Kao, JP 2009-247644, published October 29, 2009. Because Kao is in
Japanese, we will, as do Appellants and the Examiner, make reference to the
machine translation and partial professional translation of record.
3 Elliott, "Super Absorbent Polymers," published by BASF.
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Application 13/195,986
2. Claims 1, 3-6, and 9-14 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Kao in view of Johns,4 in view of evidence shown by
Elliott.
3. Claims 7 and 8 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Kao in view of Johns, as evidenced by Elliott, or
alternatively, over Kao in view of Johns, Quincy,5 and Olson,6 as evidenced
by Elliott.
4. Claim 15 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Kao in view of Johns, as evidenced by Elliott, or alternatively, over
Kao in view of Johns and Quincy, as evidenced by Elliott.
5. Claims 1, 3-6, and 10-13 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Long7 in view of Harmon,8 as evidenced by Elliott.
6. Claims 7 and 8 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Long in view of Harmon, and further in view of Quincy
and Olson, as evidenced by Elliott.
7. Claim 9 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Long in view of Harmon, and further in view ofBrueggemann,9 as
evidenced by Elliott.
4 Johns et al., US 3,815,602, issued June 11, 1974.
5 Quincy et al., US 2008/0147153 Al, published June 19, 2008.
6 Olson et al., US 2006/0247588 Al, published November 2, 2006.
7 Long et al., US 2010/0152689 Al, published June 17, 2010.
8 Harmon, US 3,930,086, issued December 30, 1975.
9 Brueggemann et al., US 6,051,317, issued April 18, 2000.
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Application 13/195,986
8. Claim 14 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Long in view of Harmon, and further in view of Go bran, 10 as evidenced
by Elliott.
9. Claim 15 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Long in view of Harmon, and further in view of Brueggemann and
Quincy, as evidenced by Elliott.
DISCUSSION
Rejections 1--4. "A prior art reference anticipates a patent
claim under 35 U.S.C. § 102(b) if it discloses every claim limitation." In re
Montgomery, 677 F.3d 1375, 1379 (Fed. Cir. 2012) (citing Verizon Servs.
Corp. v. Cox Fibernet Va., Inc., 602 F.3d 1325, 1336-37 (Fed. Cir. 2010)).
"[D]uring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the specification." In re Translogic
Tech., Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007) (quoting In re Hyatt,
211 F.3d 1367, 1372 (Fed. Cir. 2000)). See also In re Am. Acad. of Sci.
Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (The scope of the claims in
patent applications is not determined solely on the basis of the claim
language, but upon giving claims their broadest reasonable construction in
light of the specification as it would be interpreted by one of ordinary skill in
the art.) (citations omitted); Phillips v. AWH Corp., 415 F.3d 1303, 1315
(Fed. Cir. 2005) ("[T]he specification 'is always highly relevant to the claim
construction analysis. Usually, it is dispositive; it is the single best guide to
the meaning of a disputed term."' (Citation omitted)).
10 Gobran, US 5,342,685, issued August 30, 1994.
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Application 13/195,986
Appellants argue that Kao does not describe a film, because each of its
layers are fiber aggregates which, according to Appellants, are different
from films (Appeal Br. 3). According to Appellants, Kao describes an
absorbent body which as a holding layer and a cooling layer, each of which
is a fiber aggregate (Appeal Br. 3, citing Kao Machine Translation, ,-J,-J 42,
46). Appellants argue that to a person of skill in the art, a fiber aggregate
layer cannot be an extruded film (id.). Appellants point to the Specification
to support this position, arguing that the Specification distinguishes between
a co form, made of blends of fibers, and films (id.). While Appellant does
not point to a specific definition of "film" in the Specification, this
distinction is also referenced in Example 1 and Fig. 10, which compare
products made of a coform material with those of a co-extruded film.
Furthermore, the Examiner appears to agree that a film is different
from a fiber aggregate (Ans. 39) ("Kao do not disclose the entire holding
layer 32 is made of a fiber aggregate," which suggests that a fiber aggregate
is not a film). However, the Examiner finds that because Kao's layer
contains a superabsorbent polymer (in an undefined amount) it is a "film" as
used in the claims (Ans. 39).
Ultimately, we agree with Appellants on this issue. While the
Specification does not specifically define "film," it does distinguish
between layers made of fibers (conforms) - such as those disclosed in
Kao - and the claimed films. Furthermore, a coextruded film having two
layers does set forth specific structure implied by the process step that
should be considered, as the Specification shows such a coextruded film
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Application 13/195,986
imparts distinctive structural characteristics to the final product. See, e.g.,
In re Garnero, 412 F.2d 276,279, 162 USPQ 221,223 (CCPA 1979)
(holding "interbonded by interfusion" to limit structure of the claimed
composite and noting that terms such as "welded," "intermixed," "ground
in place," "press fitted," and "etched" are capable of construction as
structural limitations).
Thus, the preponderance of the evidence of record supports Appellants'
position that Kao' s materials are not "a coextruded film having two layers"
as recited in the claims (Appeal Br. 4), mandating reversal of the
anticipation rejection over Kao. With respect to the remaining obviousness
rejections based on Kao, the Examiner does not rely on the secondary
references to cure the foregoing deficiency of Kao (i.e. the failure to teach or
suggest the use of films), requiring reversal of those rejections as well.
Rejections 5-9. Each of these rejections relies on the primary
reference Long. The Examiner finds that Long discloses a "physical
sensation absorbent article" (Final Act. 22). The Examiner further finds that
Long teaches that its physical sensation absorbent article is made of a carrier
layer and a physical sensation composite (id., citing Long, Figure 5 and
,-J 59). The Examiner finds that these layers correspond to the claimed
polymer skin layer and claimed stimulation layer, and that the physical
sensation layer comprises a matrix of fibers and physical sensation material
(id., citing Long ,-J 62).
Appellants argue that Long does not disclose or suggest "a film
having two layers," based on Long's disclosure that its physical sensation
layer comprises "a matrix of fibers." As was the case in arguing the
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Application 13/195,986
rejections based on Kao discussed above, Appellants contend the matrix of
fibers would not be understood to be a "film" as set forth in the claims
(Appeal Br. 7). 11 As discussed above, the preponderance of the evidence of
record supports Appellants' position that layers comprising fibrous materials
would not be a "coextruded film having two layers" as set forth in the claims
on appeal. Nor has the Examiner persuasively explained why it would have
been obvious to replace Long's fibrous layer with a coextruded film (as used
in the claims), or relied on any of the secondary references as suggesting this
modification. Accordingly, we also reverse the rejections relying on Long
as a primary reference.
CONCLUSION
We REVERSE the rejection of claims 1, 3-10, and 12-15 under
35 U.S.C. §102(b) as anticipated by Kao, in view of evidence shown by
Elliott.
We REVERSE the rejection of claims 1, 3-6, and 9-14 under
35 U.S.C. § 103(a) as unpatentable over Kao in view of Johns, in view of
evidence shown by Elliott.
We REVERSE the rejection of claims 7 and 8 under 35 U.S.C. § 103(a)
as unpatentable over Kao in view of Johns, as evidenced by Elliott, or
alternatively, over Kao in view of Johns, Quincy, and Olson, as evidenced by
Elliott.
11 Appellants also argue that Long's layer that the Examiner finds
corresponds to the claimed polymer skin layer is not a film (Appeal Br. 7).
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Application 13/195,986
We REVERSE the rejection of claim 15 under 35 U.S.C. § 103(a) as
unpatentable over Kao in view of Johns, as evidenced by Elliott, or
alternatively, over Kao in view of Johns and Quincy, as evidenced by Elliott.
We REVERSE the rejection of claims 1, 3-6, and 10-13 under
35 U.S.C. § 103(a) as unpatentable over Long in view of Harmon, as
evidenced by Elliott.
We REVERSE the rejection of claims 7 and 8 under 35 U.S.C. § 103(a)
as unpatentable over Long in view of Harmon, and further in view of Quincy
and Olson, as evidenced by Elliott.
We REVERSE the rejection of claim 9 under 35 U.S.C. § 103(a) as
unpatentable over Long in view of Harmon, and further in view of
Brueggemann, as evidenced by Elliott.
We REVERSE the rejection of claim 14 under 35 U.S.C. § 103(a) as
unpatentable over Long in view of Harmon, and further in view of Go bran,
as evidenced by Elliott.
We REVERSE the rejection of claim 15 under 35 U.S.C. § 103(a) as
unpatentable over Long in view of Harmon, and further in view of
Brueggemann and Quincy, as evidenced by Elliott.
REVERSED
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