Ex Parte Luccio et al

Board of Patent Appeals and Interferences

May 23, 2007

09859665 (B.P.A.I. May. 23, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ROBERT COSMO DI LUCCIO,
MICHAEL A. DALEY, DAVID C. POTTS,
GREGORY M. LEFKOWITZ, JACK N. LINDON,
DAVID M. JACKSON, MATTHEW D. YOUNG,
CHERYL A. MOCADLO,
AND CANDACE D. KRAUTKRAMER
____________

Appeal 2006-2263
Application 09/859,665
Technology Center 3700
____________

Decided: May 23, 2007
____________

Before BRADLEY R. GARRIS, THOMAS A. WALTZ, and
PETER F. KRATZ, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal the final rejection of claims 1-4, 6, 8-12, 14-20,
23-26, 32-34, 36-41, and 44 under 35 U.S.C. § 134. We have jurisdiction
over the appeal pursuant to 35 U.S.C. § 6(b).
Appeal 2006-2263
Application 09/859,665

We AFFIRM-IN-PART and REMAND.

INTRODUCTION
Appellants claim a personal care absorbent article and a method for
treating a viscoelastic proteinaceous fluid (Claims 1 and 32). The
viscoelastic proteinaceous fluid may include menses (claim 15). The
method includes adding a “treatment chemistry” which may include a water
soluble gelling agent which cross-links protein to an absorbent article
(Specification 4-5). The water soluble gelling agent, for example, reacts
with the viscoelastic proteinaceous fluid to increase the viscosity (i.e.,
thicken) the fluid and prevent it from leaking out of the absorbent article
(Specification 31).
Claims 1 and 15 are illustrative:
1. A method for treating a viscoelastic proteinaceous fluid, whereby
management of said viscoelastic fluid by a personal care absorbent article is
improved, comprising the steps of:

treating at least one portion of said personal care absorbent article
with at least one treatment chemistry selected from the group consisting of
water-soluble gelling agents which crosslink protein, thickening agents,
plasma precipitators and combinations thereof; and

contacting said at least one portion of said personal care absorbent
article with said viscoelastic fluid, thereby one of altering at least one
property of said viscoelastic fluid and altering an interaction between said
absorbent article and said viscoelastic fluid;

wherein said personal care absorbent article includes a fluid pervious
polyolefin cover sheet, a fluid impervious backsheet, and an absorbent core
between them.

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15. A method for treating menses comprising the steps of:

forming a tampon including a nonwoven web material;

dispersing at least one treatment chemistry selected from the group
consisting of water-soluble gelling agents which crosslink protein,
thickening agents, plasma precipitators and combinations thereof on at least
one of at least a portion of a surface of polyolefin or pulp fibers forming
said nonwoven web material and within at least a portion of the interstices of
said nonwoven web material;

contacting said at least one treatment chemistry with said menses.

The Examiner relies on the following prior art references as evidence
of unpatentability:
Blaney US 6,177,607 B1 Jan. 23, 2001 (Jun. 25, 1999)
Hamilton US 6,562,192 B1 May 13, 2003 (Apr. 12, 2000)

The rejections as presented by the Examiner are as follows:
1. Claims 1-4, 6, 8-12, 14, 32-34, 36-41, and 44 are rejected under
35 U.S.C. § 102(e) as being unpatentable over Blaney.
2. Claims 15-20 and 23-26 are rejected under 35 U.S.C. § 102(e) as
being unpatentable over Hamilton.

Regarding the § 102(e) rejection over Blaney, Appellants argue the
same claim feature (i.e., the “water-soluble” nature of the gelling agents
which crosslink protein) with respect to independent method claim 1 and
independent article claim 32. Accordingly, we choose independent method
claim 1 as the representative claim for determination of the propriety of the §
102(e) rejection over Blaney.
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Regarding the § 102(e) rejection over Hamilton, Appellants argue
independent method claim 15. Accordingly, we address Appellants’
arguments regarding the rejection of claim 15 in our determination of the
propriety of the § 102(e) rejection over Hamilton.

OPINION
35 U.S.C. § 102(e) REJECTION OVER BLANEY
The Examiner cites to column 6, line 38 of Blaney as disclosing
chitosan as a “gelling agent” (Answer 3). The Examiner contends that
chitosan is naturally water-soluble (Answer 6), such that Blaney discloses
the treatment chemistry used in her absorbent product is a “water-soluble
gelling agent” as claimed by Appellants.
Appellants’ only argued distinction is that Blaney fails to disclose a
“water-soluble” gelling agent as claimed (Br. 4). Specifically, Appellants
argue that Blaney discloses using chitosan as a “superabsorbent material”
and that Blaney further defines “superabsorbent material” as being “water-
insoluble” (Br. 4-5).
We cannot sustain the Examiner’s § 102(e) rejection over Blaney.
Blaney defines “superabsorbent materials” as being “water-swellable,
water-insoluble organic and inorganic material” (Blaney, col. 6, ll. 11-15).
Blaney indicates that “superabsorbent materials” may include, for example,
“ . . . natural and modified natural polymers, such as. . . chitosan” (Blaney,
col. 6, ll. 35-40). Hence, in the context of the Blaney patent, chitosan may
be modified and is “water-insoluble.”
Based on the foregoing disclosure, we agree with Appellants that
Blaney fails to teach that chitosan, as used by Blaney in her absorbent
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product, is a water-soluble gelling agent. Accordingly, the “water-soluble”
feature of the gelling agents of claims 1 and 32 is not disclosed by Blaney.
Accordingly, we reverse the Examiner’s § 102(e) rejection over
Blaney of independent claims 1 and 32 and dependent claims 2-4, 6, 8-12,
14, 33, 34, 36-41, and 44.

35 U.S.C. § 102(e) REJECTION OVER HAMILTON
Appellants argue that Hamilton fails to disclose the following two
features of claim 15: (1) “dispersing at least one treatment chemistry
selected from the group consisting of water-soluble gelling agents which
crosslink protein, thickening agents, plasma precipitators, and combinations
thereof on at least one of at least a portion of a surface of a polyolefin or
pulp fibers forming said nonwoven web material and within at least a
portion of the interstices of said nonwoven web material” and (2)
“contacting said at least one treatment chemistry with said menses.”
We begin our analysis of claim 15 by construing the claim language “.
. . at least one of at least . . . and . . .” as used in the claim phrase “dispersing
. . . water-soluble gelling agents which crosslink protein . . . on at least one
of at least a portion of a surface of polyolefin or pulp fibers forming said
nonwoven web material and within at least a portion of the interstices of said
nonwoven web material.” We look to Appellants’ Specification for
guidance in construing the claim phrase. Phillips v. AWH Corp., 415 F.3d
1303, 1316, 75 USPQ2d 1321, 1329 (Fed. Cir. 2005). Appellants disclose
that the thickening or gelling agents may be incorporated into an absorbent
article in “a variety of ways” (Specification 33:8-10). Appellants’ “variety
of ways” may include mixing the gelling agents at a prescribed
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concentration into the materials such as non-woven materials during the
manufacturing process, adding the gelling agents “on their own” to the
absorbent article, or adding the gelling agents to the absorbent article “by
means of airlaid, airformed, wetlaid, absorbent laminates, or nonwoven
materials . . .” (Specification 33:10-15).
Because Appellants describe various alternatives (i.e., “a variety of
ways”) to incorporate the water soluble gelling agent into the nonwoven web
material, we construe the claim phrase “on at least one of at least” in claim
15 to mean that either the gelling agent is placed on “a portion of a surface
of polyolefin or pulp fibers forming said nonwoven web material” or “within
at least a portion of the interstices of said nonwoven web material” (Claim
15).
Our above claim construction is further supported by the language of
claim 15 itself. The claim language, “at least one,” plainly indicates that
only one of the application techniques (i.e., “on . . . a surface of a polyolefin
or pulp fibers forming said nonwoven web” or “within at least a portion of
the interstices of said nonwoven web material”) following such claim
language need be met to satisfy the claim feature. Accordingly, prior art that
discloses placing a water-soluble gelling agent on either “a portion of a
surface” of a fiber, or “within . . . the interstices of said nonwoven web”
would satisfy the particular claim feature.
Hamilton discloses placing chitosan (i.e., gelling agent) and nits inside
a pouch of non-woven web material, such as a spunbond polypropylene web
(Hamilton col. 25, ll. 25-48; col. 30, ll. 63-64 and col. 45, ll. 52-55).
Chitosan, in its natural form, is water-soluble. The chitosan and nits are
mixed in granular form (Hamilton, col. 29, ll. 51-55).
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Claims are given their broadest reasonable construction consistent
with the Specification during examination. Phillips, 415 F.3d at 1316,
75 USPQ2d at 1329. The Examiner determined that Hamilton’s granular
mixture including chitosan and nits contacts at least the inner surface of the
spunbond polypropylene pouch such that the chitosan is “on . . . at least a
portion of a surface of polyolefin [i.e., polypropylene] . . . fibers forming
said nonwoven web material” such that Appellants’ argued claim feature (1)
is satisfied by Hamilton (Answer 7).
We determine the Examiner is reasonable in his construction of claim
15 as including Hamilton’s disclosure wherein granular chitosan (i.e.,
gelling agent) is in contact with the inside of a non-woven polypropylene
web material such that claim feature (1) is disclosed. The granular mixture
of chitosan and nits would necessarily have to contact “at least a portion of a
surface of polyolefin . . . fibers” (claim 15) constituting the nonwoven pouch
encasing the chitosan and nit granular mixture. Thus, we agree with the
Examiner that Hamilton discloses Appellants’ claim feature (1).
Regarding the second argued distinction, Hamilton discloses testing
the samples using menstruating subjects (Hamilton, col. 45, ll. 50-60).
Accordingly, claim feature (2), “contacting said at least one treatment
chemistry with said menses,” is satisfied by Hamilton.
Because Hamilton discloses both of Appellants’ argued claim features
and for the reasons noted above, we affirm the Examiner’s § 102(e) rejection
of argued claim 15 and non-argued claims 16-20 and 23-26 over Hamilton.

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REMAND
At least claims 1 and 32 appear to be unpatentable under §§ 102(e) or
103(c) over Hamilton. Regarding claim 1, Hamilton discloses a method of
changing the rheological (viscoelastic) properties of a fluid by using a
personal care absorbent article having “a fluid pervious polyolefin cover
sheet,” “a fluid impervious backsheet,” and “an absorbent core between
them” (Hamilton, Figure 2, ref. no. 24, 26, 32 and 34; col. 25, ll. 25-45; col.
29, ll. 40-55). Hamilton discloses enclosing chitosan (i.e., gelling agent) and
nits inside a non-woven polypropylene web that is part of an absorbent
article (Hamilton col. 25, ll. 25-48; col. 29, ll. 30-36; col. 30, ll. 63-64 and
col. 45, ll. 52-55). Hamilton further discloses contacting the chitosan and nit
mixture with menses or other fluid such that change occurs in the
rheological properties (i.e., viscosity) of the fluid being treated (Hamilton,
col. 25, ll. 25-45). Accordingly, Hamilton appears to disclose all that is
contained in claim 1.
Regarding claim 32, Hamilton discloses a personal care absorbent
article having “a fluid pervious polyolefin cover sheet,” “a fluid impervious
backsheet,” and “an absorbent core between them” (Hamilton, Figure 2, ref.
no. 24, 26, 32 and 34; col. 25, ll. 25-45; col. 29, ll. 40-55). Hamilton further
discloses enclosing chitosan (i.e., gelling agent) and nits inside a nonwoven
polypropylene web that is part of the absorbent core of the absorbent article
(Hamilton col. 25, ll. 25-48; col. 29, ll. 30-36; col. 30, ll. 63-64 and col. 45,
ll. 52-55). Accordingly, Hamilton appears to disclose all that is contained in
claim 32.
We note that Appellants disclose using chitosan as a water-soluble
gelling agent (Specification 35-36). It appears that Hamilton’s chitosan
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inherently is water-soluble too. However, in the alternative, it would have
been obvious to one of ordinary skill in the art at the time the invention was
made to use the water-soluble, natural form of chitosan to make the
absorbent article more cheaply by avoiding the more expensive synthetic,
water-swellable, water-insoluble form of chitosan.
Therefore, in response to this remand, the Examiner must determine,
and make of record the results of this determination, the propriety of
rejecting at least claims 1 and 32 under 35 U.S.C. § 102(e)/103(c) as being
unpatentable over Hamilton US 6,562,192 B1.
This Remand to the Examiner pursuant to 37 C.F.R. § 41.50(a)(1)
(2006) is not made for further consideration of a rejection. Accordingly,
37 C.F.R. § 41.50(a)(2) (2006) does not apply.

DECISION
The Examiner’s rejection of claims 1-4, 6, 8-12, 14, 32-34, 36-41, and
44 under § 102(e) over Blaney is REVERSED.
The Examiner’s rejection of claims 15-20 and 23-26 under § 102(e)
over Hamilton is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv)(2006).
AFFIRMED-IN-PART and REMANDED

cam
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Pauley Petersen & Erickson
2800 West Higgins Road
Hoffman Estates, IL 60195
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