Ex Parte Guerreschi et al

Board of Patent Appeals and Interferences

May 22, 2012

10831725 (B.P.A.I. May. 22, 2012)

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.
10/831,725 04/23/2004 Lisa Guerreschi CM2747 2337
27752 7590 05/22/2012
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
CHAPMAN, GINGER T
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
05/22/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte LISA GUERRESCHI, GIANCARLO SIERRI,
ETTORE MASSACESI, VINCENZO PARTENZA,
and GIOVANNI CARLUCCI
__________

Appeal 2011-001838
Application 10/831,725
Technology Center 3700
__________

Before TONI R. SCHEINER, ERIC GRIMES, and
JACQUELINE WRIGHT BONILLA, Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1, 7, 8, 10, 14-19, and 21-27, directed to an absorbent article. The
claims have been rejected as obvious. We have jurisdiction under 35 U.S.C.
§ 6(b).
Appeal 2011-001838
Application 10/831,725

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STATEMENT OF THE CASE
Claims 1, 7, 8, 10, 14-19, and 21-27 are pending and on appeal. The
claims have not been argued separately and therefore stand or fall together.
37 C.F.R. § 41.37(c)(1)(vii). Claim 1 (emphasis added) is representative of
the subject matter on appeal:
1. An absorbent article for feminine hygiene, being a sanitary napkin, a
panty liner, an interlabial device, a tampon or an incontinence device, said
article being packaged in a vapour-impermeable package made of a
package material, said package completely encloses said article and prevents
contact of said article with the outside environment, said article comprising a
non-aqueous volatile material having a vapour pressure at 20°C of at least
0.01 mbar, wherein said non-aqueous volatile material is a cooling agent
able to stimulate thermo-receptors of the skin and/or mucosal surface of the
wearer of said article, to convey a freshness sensation to the wearer, without
the need to change the temperature on the skin and/or mucosal surface,
wherein said cooling agent is selected from the chemical classes consisting
of ketals, carboxamides, cyclohexyl derivatives, cyclohexanol derivatives,
camphor, borneol, eucalyptol, methyl salicylate, tea tree oil, eucalyptus oil,
peppermint oil, or mixtures thereof, wherein said package material has a
permeability of not more than 25% according to the permeability test
described herein with respect to menthyl lactate, wherein said package
material comprises at least one barrier layer made of a material selected
from the group consisting of ethyl vinyl alcohol resins, aluminized film,
aluminum foil, oriented polyethylene terephtalate, glycol-modified
polyethylene terephtalate, oriented polyamide, aromatic polyamide,
polymeric films being coated with volatile-impermeable lacquers, and
mixtures thereof, wherein said barrier layer is positioned in a multilayer
structure with 2 layers of polyethylene being arranged on each surface of
said barrier layer so that a layer of polyethylene defines respective outer
surfaces of said package material.
Claims 1, 7, 8, 10, 14-19, and 21-27 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Meo et al. (EP 1 250 940 A1, October 23,
2002) and Persson et al. (US 6,854,600 B1, February 15, 2005).
We affirm.
Appeal 2011-001838
Application 10/831,725

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Findings of Fact
1. Meo discloses absorbent articles - for example, sanitary napkins
and panty liners - that incorporate “a cooling agent able to convey a
cooling/freshness sensation, without the need to create the corresponding
external condition perceived by the wearer” (Meo ¶ 9). Suitable cooling
agents include ketals, carboxamides, cyclohexyl derivatives and/or
cyclohexanol derivatives, camphor, borneol, eucalyptol, methyl salicylate,
tea tree oil, eucalyptus oil, peppermint oil, and menthyl lactate (id. at ¶¶ 86,
89).
2. Meo teaches that the absorbent articles may additionally
comprise carriers in the form of lotions, creams, oils, ointments, powders,
emulsions, foams, and gels (Meo ¶ 100), and odor control agents such as
zeolites, together with silicate and/or silica (id. at ¶¶ 135, 136).
3. Meo teaches that “the absorbent article may also comprise all
those features and parts which are typical for products in the context of their
intended use such as . . . wrapping elements” (Meo ¶ 198).
4. Meo teaches that compositions containing the cooling agents
“preferably [are] substantially immobilized on the article‟s wearer-facing
surface” (Meo ¶ 110), and “[p]referred compositions are at least semi-solid
at room temperature to minimize composition migration before wear of the
article” (id. at ¶ 112). “In addition, the compositions preferably have a final
melting point (100% liquid) above potential „stressful‟ storage conditions
that can be greater than 45°C (e.g., warehouse in Arizona, car trunk in
Florida, etc.)” (id.).
5. Persson discloses moisture-impervious packaging for absorbent
articles that include additives like lotions, and/or odor-inhibiting zeolites and
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Application 10/831,725

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silica, which lose “some of their properties or effectiveness at high moisture
contents” (Persson, Abstract; col. 1, ll. 18-37, 45-46).
6. Persson‟s packaging “is preferably comprised of several layers,
where different layers may consist of different materials” (Persson, col. 4, ll.
5-7).
Polymeric material suitable for use as packaging unit is,
e.g., PE (polyethylene), PP (polypropylene), PET (polyester),
PA (polyamide), PETP, PVA (polyvinyl alcohol), or like
polymeric material. Aluminum foil, aluminum oxide or silicon
oxide, for instance, is used as supplementary sealing material.
Examples of such materials are Techbarrier S, V, H, T, AT,NR,
NY (Mitsubishi), Helional WTY (Amcor Flexibles), VA
535670 (metallised PE/PET) (Nordenia), 4364 (Schur-
Flexible), Coex HDPE Surlyn (Schur-Flexible), Coex Cheerios
(Schur-Flexible).
(Id. at col. 3, l. 60 - col. 4, l. 4.)
Discussion
The Examiner finds that Meo‟s absorbent articles comprise the same
non-aqueous volatile cooling agents required by claim 1 (Ans. 3), and that
those cooling agents inherently exhibit vapour pressures within the required
range (id. at 4). The Examiner finds that Meo‟s absorbent article may also
comprise a carrier in the form of a lotion, cream, oil, ointment, powder,
emulsion, foam or gel (id. at 6), as well as an odor control agent, such as a
zeolite, silicate and/or silica (id.). In addition, the Examiner finds that Meo
discloses that “the article may comprise . . . wrapping elements, i.e.
wrappers” (id. at 5), but concedes that Meo does not disclose the “vapour-
impermeable package” required by claim 1 (id.).
The Examiner finds that Persson discloses multi-layered vapour-
impermeable packaging intended “to protect and maintain absorbent articles
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for feminine hygiene . . . that comprise active moisture-sensitive additives or
substances such as lotions and skin care compositions . . . , zeolites and
silicas” (id. at 7). The Examiner finds that Persson‟s packaging is made of
the same materials specified in claim 1 (id. at 8), and inherently exhibits a
permeability of not more than 25% under the conditions recited in claim 1
(id. at 9).
The Examiner concludes that it would have been obvious for one of
ordinary skill in the art “to wrap the articles of Meo in packaging as
disclosed by Persson in order to maintain the articles and provide protection
to the compositions therein until . . . the articles are used” (id. at 10), at least
in part, because “Persson expressly and particularly discloses low moisture
vapor packaging in order to protect moisture sensitive agents such as . . . [the
lotions, zeolites, and silicas] disclosed by Meo” (id. at 26).
Appellants contend that “there is no apparent reason or true
motivation to package the articles of Meo in [Persson‟s] barrier-type
packaging” (App. Br. 7), because Meo‟s “wrapping element is merely an
optional component” (id. at 6 (emphasis in original)), and “Meo clearly does
not appreciate the applicant-identified problem of volatile materials
migrating through traditionally-employed packaging materials” (id. at 8).
Appellants contend that Meo “actually suggests there is no stability issue
with the [disclosed] cooling agents” (id. at 7), and “to the extent there is
some stability concern . . . teaches a migration minimization technique that
is completely different from employing a multilayer package material that
includes a barrier layer and that has a permeability of not more than 25%”
(id.).
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Application 10/831,725

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Appellants‟ arguments are not persuasive. First, both Meo and
Persson provide evidence that absorbent feminine hygiene articles are
typically wrapped in some manner (FFs 3, 5). The mere fact that Meo
teaches that migration of the cooling agents to undesirable locations of the
absorbent articles can be minimized by providing them in the form of semi-
solid compositions (FF4) does not persuade us that wrapping Meo‟s articles
would have been unobvious. As found by the Examiner (Ans. 10), one
would have been motivated to use a protective wrapper regardless.
Moreover, we agree with the Examiner that Persson provides ample
reason to wrap the articles in the vapor-impermeable packaging required by
claim 1. That is, we agree with the Examiner that it would have been
obvious for one of ordinary skill in the art to use Persson‟s moisture-
impervious packaging to protect Meo‟s absorbent articles, and their
moisture-sensitive components (like zeolites and silicas), from ambient
moisture, regardless of whether one of ordinary skill would have expected
the cooling agents to volatilize away from Meo‟s absorbent articles. As the
Examiner points out, “Persson expressly and particularly discloses low
moisture vapor packaging in order to protect moisture sensitive agents such
as those disclosed by Meo” (Ans. 26; FFs 2, 5). It is well settled that “any
need or problem known in the field of endeavor at the time of invention and
addressed by the patent can provide a reason for combining the elements in
the manner claimed.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420
(2007).
SUMMARY
The rejection of claims 1, 7, 8, 10, 14-19, and 21-27 as unpatentable
over Meo and Persson is affirmed.
Appeal 2011-001838
Application 10/831,725

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TIME PERIOD FOR RESPONSE
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

cdc