Kimberly-Clark Worldwide, Inc.

Patent Trials and Appeals Board

Dec 18, 2020

2021000093 (P.T.A.B. Dec. 18, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
16/333,716 03/15/2019 Nathan John Vogel 65023750US08 1002
23556 7590 12/18/2020
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
Neenah, WI 54956
EXAMINER
UTT, ETHAN A
ART UNIT PAPER NUMBER
1783
NOTIFICATION DATE DELIVERY MODE
12/18/2020 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 NATHAN JOHN VOGEL, AMANDA ANN GANTZ,
NICHOLAS SCOTT WALKER, DAVID JAMES SEALY POWLING, and
CARLY ELIZABETH HERR1
____________

Appeal 2021-000093
Application 16/333,716
Technology Center 1700
____________

Before ROMULO H. DELMENDO, LINDA M. GAUDETTE, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.

KENNEDY, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1, 3–9, 11, 13–18, 20–26, 31, and 33. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as
Kimberly-Clark Worldwide, Inc. Appeal Br. 1.
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BACKGROUND
The subject matter on appeal relates to dispersible wet wipes. E.g.,
Spec. 2:4; Claim 1. Claim 12 is reproduced below from page 12 (Claims
Appendix) of the Appeal Brief:
1. A dispersible wet wipe comprising:
a layer of cellulosic fibers comprising a first sub-layer of wetlaid
tissue and a second sub-layer of airlaid tissue, the layer having a
first surface and a second surface;
a first binder applied in a coating on the first surface, wherein the
coating comprises randomly distributed deposits of the first
binder; and
a second binder applied in an intermittent pattern on the first
surface to define first regions on the first surface that include first
binder but no second binder and to define second regions on the
first surface that include both first binder and second binder.
REJECTIONS ON APPEAL
The claims stand rejected as follows:
1. Claims 25, 26, 31, and 33 under 35 U.S.C. § 112(b) as indefinite.

2 Claim 1 recites that “first regions on the first surface . . . include first
binder but no second binder.” This recitation may create ambiguity because,
if the first binder and the second binder are the same, it is unclear how it
would be possible for a region to “include first binder but no second binder.”
Although no claim depending from claim 1 specifically recites that the first
and second binders may be the same (or, for that matter, that they may not
be the same), claim 16, which depends from claim 11, recites that “the first
and second binder have the same chemical composition.” In the event of
further examination of this application, the Appellant and the Examiner may
wish to consider whether the first and second binders of claim 1 may be the
same, and if so, whether that creates ambiguity as to the recitation of a first
region that “include[s] first binder but no second binder.”
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2. Claim 33 under 35 U.S.C. § 112(d) for failure to further limit the
subject matter of the claim from which it depends or for failure to include all
limitations of the claim from which it depends.
3. Claims 1, 3–9, 11, 13–18, 20–26, 31, and 33 under 35 U.S.C. § 103
as unpatentable over Hurley (US 2014/0173841 A1, published June 26,
2014) and Chen (US 2004/0099389 A1, published May 27, 2004).
ANALYSIS
After review of the cited evidence in the appeal record and the
opposing positions of the Appellant and the Examiner, we determine that the
Appellant has not identified reversible error in Rejections 1 and 2.
Accordingly, we affirm those rejections for reasons set forth below, in the
Final Action dated February 5, 2020, and in the Examiner’s Answer.
However, for reasons set forth below, we reverse as to Rejection 3.
Rejection 1
A claim is indefinite under 35 U.S.C. § 112(b) when it contains words
or phrases whose meaning is unclear. In re Packard, 751 F.3d 1307, 1309
(Fed. Cir. 2014). “[D]uring patent prosecution when claims can be
amended, ambiguities should be recognized, scope and breadth of language
explored, and clarification imposed.” See In re Zletz, 893 F.2d 319, 321
(Fed. Cir. 1989); see also Packard, 751 F.3d at 1314 (affirming rejection,
among other reasons, because the appellant did not “show why, on close
scrutiny, the existing claim language really was as reasonably precise as the
circumstances permitted”).
The Examiner finds that the term “the web having first and second
surfaces having first and second surface areas,” as recited in claim 25, is
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ambiguous because “[i]t is not clear whether this limitation is meant to
indicate that the first and second surfaces each have first and second surface
areas or that the first and second surface[s] respectively have first and
second surface areas.” Ans. 3 (emphasis added).
In the Appeal Brief, the entirety of the Appellant’s argument is that
“[w]hether the first surface also has a second surface area, or the second
surface relates to the second surface is immaterial to the understanding of
the claims, as neither claim 25 nor its dependents describ[e] applying a
binder to the second surface or a second surface area.” Appeal Br. 3.
In the Examiner’s Answer, the Examiner responds that, “if first and
second surfaces each have first and second surface areas, then the
requirement of at least about 70% coverage becomes unclear in that there is
no clear bounds as to the percentage of coverage of the first surface.”
Ans. 22.
The Appellant does not file a Reply Brief to address the Examiner’s
additional analysis in the Answer.
On this record, we are not persuaded of reversible error in the
Examiner’s rejection. Claim 25 specifies that a “first binder covers at least
about 70 percent of a first surface area of the first surface.” If, as the
Appellant advances, see Appeal Br. 3, the claim is interpreted as each
surface respectively having only a single surface area (the entire surface),
the 70% limitation would mean that 70% of the first surface is covered. If,
however, the claim is interpreted as requiring each surface to have two
surface areas, the 70% limitation would be of materially different scope, and
required coverage of the surface would depend on how each surface area is
defined on the surface. Consistent with the Examiner’s rejection, we are not
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persuaded by the Appellant’s argument that “[w]hether the first surface also
has a second surface area, or the second surface relates to the second surface
is immaterial to the understanding of the claims.” Appeal Br. 3.
Accordingly, we affirm the Examiner’s § 112(b) rejection of claim 25.
We likewise affirm the Examiner’s § 112(b) rejection of claims 26, 31, and
33, which depend from claim 25 and thereby include the same limitation.
The Examiner also rejects claim 31 as indefinite for the independent
reason that claim 31’s recitation of “the first side” lacks antecedent basis.
Ans. 4.
The Appellant fails to address that independent basis for the rejection
of claim 31. See Appeal Br. 3.
Because the Appellant does not assert error in that rejection, we
summarily affirm that rejection of claim 31.
The Examiner also provides an independent basis for determining that
claim 33 is indefinite. The Examiner observes that claim 25 recites, “a first
binder disposed in a continuous, random pattern,” and that claim 33, which
depends from claim 25, recites, “the first binder is disposed in a substantially
continuous lattice pattern.” Ans. 4. The Examiner determines that “[a]
lattice pattern has, by definition, a degree of order which is non-random,”
and, therefore, that “the metes and bounds of claim 33 are unclear in that it
cannot be determined how a random pattern [required by claim 25] can
simultaneously be a lattice pattern [required by dependent claim 33].” Id.
In the Appeal Brief, the Appellant states that the Appellant “does not
present arguments or rely upon particular evidence as to the rejection” of
claim 33. Appeal Br. 3.
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Particularly in the absence of any counterargument from the
Appellant, we discern no reversible error in the Examiner’s determination
that it is not adequately clear how a pattern can be both “random” (claim 25)
and a “lattice” (claim 33). The Appellant does not challenge the Examiner’s
finding that “[a] lattice pattern has, by definition, a degree of order which is
non-random.” Ans. 4.
On this record, we are not persuaded of reversible error in the
Examiner’s rejection of claim 33.
Rejection 2
The Appellant fails to acknowledge or address the Examiner’s
rejection of claim 33 under § 112(d). See Appeal Br. 3. Accordingly, we
summarily affirm that rejection.
Rejection 3
Claim 1. The Examiner finds that Hurley discloses a dispersible wet
wipe comprising a layer of cellulosic fibers with a first binder applied in a
coating on a first surface. Ans. 5. The Examiner finds that, “[a]lthough
Hurley discloses the layer of cellulosic fibers . . . may comprise a wetlaid
tissue, or an airlaid tissue, or a laminate of tissues, Hurley is not specific as
to a layer comprising a first sub-layer of wetlaid tissue and a second sub-
layer of airlaid tissue.” Id. at 6. The Examiner also finds that “Hurley is not
specific as to the dispersible wet wipe comprising a second binder.” Id. The
Examiner, however, finds that “these features would have been obvious in
view of Chen.” Id. Specifically, the Examiner finds that Chen discloses a
dispersible wet wipe comprising a layer of cellulosic fibers having “a first
sub-layer of wetlaid tissue and a second sub-layer of airlaid tissue” and “a
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binder applied in an intermittent pattern on the first surface.” Id. Citing
MPEP § 2143, the Examiner concludes that the subject matter of claim 1
would have been obvious as nothing more than the combination of “prior art
elements according to known methods to yield predictable results.” Id. at 6–
7.
Of particular relevance to an issue that the Appellant raises (discussed
below), the Examiner acknowledges that “neither Hurley nor Chen expressly
describe[s] combining their binder structures.” Id. at 7. In other words, the
Examiner acknowledges that neither reference independently teaches the use
of both “a first binder applied in a coating on the first surface,” and “a
second binder applied in an intermittent pattern on the first surface,” as
required by claim 1. See id. To address that, the Examiner finds that “Chen
suggests applications of binders need not be performed in a single step”
because Chen “describes applying decorative printing in a separate step from
the binder material Chen discloses.” Id. The Examiner determines that,
“[c]onsidering one non-limiting embodiment of Hurley’s first binder
includes coloring agents, it is observed that, if combined Hurley’s and
Chen’s respective binders could be applied in separate application steps.”
Id. (emphasis added).
The Appellant argues that the Examiner has not adequately
established that the combined prior art “teach[es] or suggest[s] applying a
first and second binder in two different patterns to a first surface.” Appeal
Br. 4–5.
We agree with the Appellant. As noted above, the Examiner finds
that “neither Hurley nor Chen expressly describe[s] combining their binder
structures,” Ans. 7, i.e., that neither reference independently teaches the use
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of both “a first binder applied in a coating on the first surface,” and “a
second binder applied in an intermittent pattern on the first surface,” as
required by claim 1. The record does not support the Examiner’s finding
that “Chen suggests applications of binders need not be performed in a
single step.” Id. The Examiner cites only ¶ 141 of Chen for support, but
that paragraph does not suggest application of binders in multiple steps. It
discloses that “decorative printing” may be applied “in a separate step,” but
it identifies decorative materials as distinct from “the bonding materials of
the present invention.” Chen ¶ 141. The Examiner has not adequately
established that a person of ordinary skill in the art would have understood
that paragraph to be suggesting application of Chen’s bonding materials in
multiple steps.
Even if it did suggest application of bonding materials in multiple
steps, however, claim 1 requires more than that. Claim 1 requires “a first
binder applied in a coating on the first surface,” and “a second binder
applied in an intermittent pattern on the first surface.” Appeal Br. 12
(Claims Appendix). The first binder is a coating; the second binder is an
intermittent pattern. Id. The Examiner finds that Chen describes binders
applied in intermittent patterns but makes no finding that Chen describes a
binder applied as a coating. See Ans. 6. Thus, even if Chen suggests
application of bonding materials in multiple steps, the Examiner has not
adequately established that Chen teaches or suggests “a first binder applied
in a coating on the first surface,” and “a second binder applied in an
intermittent pattern on the first surface,” as required by claim 1.
The Examiner’s reliance on Hurley does not resolve that apparent
deficiency in Chen. Contrary to the Examiner’s discussion, Ans. 7,
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paragraph 86 of Hurley does not describe a coloring agent as a binder.
Similar to Chen, Hurley appears to distinguish coloring agents from
Hurley’s “triggerable binder” by describing a “coloring agent[]” as a distinct
ingredient that “can be incorporated into the solution of binder components.”
Hurley ¶ 86. But, similar to our discussion of Chen above, even if Hurley
did describe its coloring agent as a binder, the Examiner does not establish
that Hurley teaches or suggests application of a binder as both a coating and
as an intermittent pattern.
Thus, we find that the Examiner has not adequately established that
either reference teaches “a first binder applied in a coating on the first
surface,” and “a second binder applied in an intermittent pattern on the first
surface,” as required by claim 1. Although Hurley does teach a binder
applied in a coating, and Chen does teach a binder applied in an intermittent
pattern, the Examiner provides no persuasive reason to add Chen’s
intermittent binder layer to Hurley’s binder coating layer. See Ans. 7. On
the contrary, the Examiner appears to recognize that the prior art does not
provide particular reason to do that, and the Examiner instead states that, “if
combined Hurley’s and Chen’s respective binders could be applied in
separate application steps.” Id. (emphasis added). Obviousness, however,
“concerns whether a skilled artisan not only could have made but would
have been motivated to make the combinations or modifications of prior art
to arrive at the claimed invention.” See Belden Inc. v. Berk–Tek LLC, 805
F.3d 1064, 1073 (Fed. Cir. 2015) (emphases in original)). On this record,
the Examiner has not adequately established that a person of ordinary skill in
the art would have been motivated to make the proposed combination to
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achieve the disputed subject matter. Accordingly, we reverse the
Examiner’s rejection of claim 1.
Claims 3–9 depend, directly or indirectly, from claim 1, and the
Examiner’s analysis of those claims does not remedy the error identified
above. Accordingly, we likewise reverse the Examiner’s rejection of claims
3–9.
Claim 11. Claim 11 is similar to claim 1, requiring a first binder
applied “in a continuous and pattern-less coating,” and a second binder
applied “in a discontinuous pattern” defining some regions that include
second binder and other regions that do not include second binder. Appeal
Br. 13 (Claims Appendix).
The Examiner’s analysis of the first and second binder requirements
of claim 11 is the same as the Examiner’s analysis of the first and second
binder requirements of claim 1. See Ans. 12. Our analysis of claim 1 above
applies equally to claim 11. We determine that the Examiner has not
adequately established that the prior art teaches or suggests a first binder
applied “in a continuous and pattern-less coating,” and a second binder
applied “in a discontinuous pattern” defining some regions that include
second binder and other regions that do not include second binder, as
required by claim 11. Accordingly, we reverse the Examiner’s rejection of
claim 11.
Claims 13–17 depend from claim 11, and the Examiner’s analysis of
those claims does not remedy the error identified above. Accordingly, we
likewise reverse the Examiner’s rejection of claims 13–17.
Claim 18. Claim 18 requires a layer of cellulosic fibers similar to
claims 1 and 11. Claim 18 also requires “a first binder applied to the first
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surface to define a first binder surface area,” and “a second binder applied to
the first surface to define a second binder surface area.” Appeal Br. 14
(Claims Appendix). Claim 18 further requires that “the second binder
surface area is at most 50 percent of the first binder surface area.” Id. Claim
18 does not require the first binder to be a “coating.” Id. Claim 18 does not
require the second binder to be any particular pattern such as intermittent (as
required by claim 1) or discontinuous (as required by claim 11). Id.
The Examiner relies on Hurley and Chen as described above, and
additionally finds that Chen teaches “a binder applied to the first surface to
define a binder surface area, wherein the binder surface area is, e.g., less
than 50% of the total surface area.” Ans. 15. The Examiner’s analysis of
the combination of Hurley and Chen is the same as above, i.e., “if combined
Hurley’s and Chen’s respective binders could be applied in separate
application steps.” Id. at 16.
The Appellant continues to argue that the Examiner has not
adequately established that the prior art teaches or suggests a wipe
containing first and second binders as required by the claims. E.g., Appeal
Br. 5–7.
Although we agree with the Examiner that Chen teaches application
of binder to small portions of the surface of its web, e.g., Chen ¶ 121
(disclosing that bonding material may cover as little as 1% of the surface),
for the reasons stated above the Examiner has not adequately established that
a person of ordinary skill in the art would have had reason to add Chen’s
binder, covering limited amounts of surface area, to the wipe of Hurley. See
Belden, 805 F.3d at 1073. Accordingly, we reverse the Examiner’s rejection
of claim 18.
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Claims 20–24 depend from claim 18, and the Examiner’s analysis of
those claims does not remedy the error identified above. Accordingly, we
likewise reverse the Examiner’s rejection of claims 20–24.
Claim 25. Claim 25 requires a “web” that, like the “layer of
cellulosic fibers” of claims 1, 11, and 18, comprises “a first wetlaid tissue
layer and a second airlaid tissue layer.” Appeal Br. 14. Claim 25 recites “a
first binder disposed in a continuous, random pattern,” and “a second binder
disposed in a discontinuous pattern.” Id. at 15.
The Examiner’s analysis of claim 25 is essentially the same as the
Examiner’s analysis of claims 1, 11, and 18, discussed above, and the
Examiner repeats the finding that “if combined Hurley’s and Chen’s
respective binders could be applied in separate application steps.” Ans. 20.
For the reasons stated above the Examiner has not adequately
established that a person of ordinary skill in the art would have had reason to
add Chen’s discontinuous binder to the wipe of Hurley. See Belden, 805
F.3d at 1073. Accordingly, we reverse the Examiner’s rejection of claim 25.
Claims 26, 31, and 33 depend from claim 25, and the Examiner’s
analysis of those claims does not remedy the error identified above.
Accordingly, we likewise reverse the Examiner’s rejection of claims 26, 31,
and 33.
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CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. § Reference(s)/Basis Affirmed Reversed
25, 26, 31,
33 112(b) Indefiniteness
25, 26,
31, 33
33 112(d) Improper dependency 33
1, 3–9, 11,
13–18, 20–
26, 31, 33
103 Hurley, Chen
1, 3–9, 11,
13–18, 20–
26, 31, 33
Overall
Outcome
25, 26,
31, 33
1, 3–9, 11,
13–18, 20–
24
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 IN PART