Vasily A. Topolkaraev et al.

Patent Trials and Appeals Board

Jul 26, 2019

12855984 - (D) (P.T.A.B. Jul. 26, 2019)

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.
12/855,984 08/13/2010 Vasily A. Topolkaraev KCX-1651
(64501080US01)
1111
22827 7590 07/26/2019
DORITY & MANNING, P.A.
POST OFFICE BOX 1449
GREENVILLE, SC 29602-1449
EXAMINER
GOLDEN, CHINESSA T
ART UNIT PAPER NUMBER
1788
NOTIFICATION DATE DELIVERY MODE
07/26/2019 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):
USDOCKETING@DORITY-MANNING.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte VASILY A. TOPOLKARAEV, PEIGUANG ZHOU,
GREGORY J. WIDEMAN, TOM EBY, and RYAN J. MCENEANY
____________

Appeal 2018-008430
Application 12/855,984
Technology Center 1700
____________

Before LINDA M. GAUDETTE, JEFFREY B. ROBERTSON, and BRIAN D.
RANGE, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

DECISION ON APPEAL1

The Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision twice rejecting claims 1–8, 10–14, 16, 18–20, and 34.3
We REVERSE.

1 This Decision includes citations to the following documents: Specification filed
August 13, 2010 (“Spec.”); Non-Final Office Action dated October 2, 2017
(“Act.”); Appeal Brief filed April 2, 2018 (“Appeal Br.”); Examiner’s Answer
dated June 22, 2018 (“Ans.”); and Reply Brief filed August 22, 2018 (“Reply
Br.”).
2 The Appellants identify Kimberly-Clark Worldwide, Inc., as the real party in
interest. Appeal Br. 1.
3 We have jurisdiction under 35 U.S.C. § 6(b).
Appeal 2018-008430
Application 12/855,984

2
The invention relates to polylactic fibers that are said to “exhibit good
elongation properties, yet remain strong.” Spec. 1:22–23. Claim 1 is representative
of the claims on appeal, and is reproduced below.
1. A polylactic acid fiber extending in a longitudinal
direction, the fiber comprising
a thermoplastic composition that contains a plurality of discrete
domains dispersed within a continuous phase,
the discrete domains containing a polymeric toughening
additive comprising a polyolefin, polyurethane, polyvinyl acetate,
polyvinyl alcohol, polytetrafluoroethylene, acrylic resin, polyamide,
polyvinyl chloride, polyvinylidene chloride, polystyrene, or a
combination thereof; and
the continuous phase containing polylactic acid,
wherein at least one of the discrete domains is elongated in the
longitudinal direction of the fiber and has a length of from about 5 to
about 400 micrometers and an aspect ratio of from about 3 to about
200, and
wherein the fiber exhibits a peak elongation of about 25% or
more and a tenacity of from about 0.75 to about 6 grams-force per
denier.
Appeal Br. 19 (Claims Appendix).
The Examiner relied on the following references as evidence of
unpatentability:
Chakravarty US 2008/287026 A1 Nov. 20, 2008
Sinclair US 5,252,642 Oct. 12, 1993
Lake US 2009/0197041 A1 Aug. 6, 2009
Tanaka US 2004/0098028 A1 Feb. 26, 2004
Sakamoto US 2010/0143717 A1 June 10, 2010
Hodson US 2004/0248486 A1 Dec. 9, 2004
Randall US 5,714,573 Feb. 3, 1998
Siqueira US 2008/0095978 A1 Apr. 24, 2008

Appeal 2018-008430
Application 12/855,984

3
The Examiner rejected claims 1–8, 10–14, 16, 18–20, and 34 under
35 U.S.C. § 103(a) as follows:
1. claims 1, 8, 10–14, 18, 19, and 34 over Chakravarty in view of
Sinclair and Lake;
2. claims 2 and 3 over Chakravarty in view of Sinclair, Lake, and
Tanaka;
3. claims 4 and 5 over Chakravarty in view of Sinclair, Lake, and
Sakamoto;
4. claims 6 and 7 over Chakravarty in view of Sinclair, Lake, and
Hodson;
5. claim 16 over Chakravarty in view of Sinclair, Lake, and Randall;
6. claim 20 over Chakravarty in view of Sinclair, Lake, and Siqueira.
Claim 1 recites a polylactic fiber that “exhibits a peak elongation of about
25% or more and a tenacity of from about 0.75 to about 6 grams-force per denier.”
The Examiner cited paragraph 48 of Chakravarty for a teaching of this feature.
Final 3. As argued by the Appellants (Appeal Br. 8), the relied-upon disclosure
teaches that in some embodiments, a “nonwoven laminate . . . may exhibit a
machine direction (‘MD’) peak elongation of . . . at least about 35%,” and “may
also exhibit a cross-machine direction (‘CD’) peak elongation of at least about
35%” (Chakravarty ¶ 48 (emphasis added)). The Examiner maintains, however,
that although Chakravarty does not explicitly disclose the peak elongation of the
polylactic acid fiber, the fiber necessarily “has a peak elongation of at least 10%
because the fiber is within the nonwoven web having such an elongation.” Ans. 14.
The Appellants note that Chakravarty’s laminate is formed by melt fusing the
fibers, and argue that melt-fused fibers are “completely and structurally different
from individual fibers that have not been fused to one another.” Appeal Br. 9.
Appeal 2018-008430
Application 12/855,984

4
The Appellants have argued persuasively that the Examiner has not
identified sufficient evidence to support a finding that the peak elongation of the
polylactic acid fibers used in Chakravarty’s nonwoven laminate is necessarily the
same as the peak elongation of the laminate. See Appeal Br. 9. In stating that “[n]o
evidence has been provided which shows that the tensile properties of the laminate
of Chakravarty are governed by the bonding of the fibers and not the fibers per se”
(Ans. 14), the Examiner improperly attempts to shift the burden of proof to the
Appellants to show that Chakravarty does not disclose or suggest fibers having the
claimed peak elongation. As explained by our reviewing court, “when the prior art
evidence reasonably allows the PTO to conclude that a claimed feature is present
in the prior art, the evidence ‘compels such a conclusion if the applicant produces
no evidence or argument to rebut it.’” In re Crish, 393 F.3d 1253, 1259 (Fed. Cir.
2004) (emphasis added) (quoting Spada, 911 F.2d at 708 n.3)). In the present case,
the Examiner has not identified evidence that supports a finding that a laminate
containing fibers that have been further processed during formation of the laminate
reasonably would be expected to have the same peak elongation as that of the
fibers prior to their use in the laminate.
Accordingly, because the Appellants have identified reversible error in the
Examiner’s conclusion of obviousness as to independent claim 1, we do not sustain
the rejection of this claim, or of claims 8, 10–14, 18, 19, and 34. As the Examiner’s
findings with respect to the additional references relied on in rejecting claims 2–7,
16, and 20, fail to cure the deficiencies in the rejection of claim 1, we also do not
sustain the rejections of these claims.

REVERSED