Ex Parte Macedo et al

Board of Patent Appeals and Interferences

Jul 31, 2007

11000692 (B.P.A.I. Jul. 31, 2007)

The opinion in support of the decision being entered today
is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte FILOMENA AUGUSTA MACEDO,
and GREGORY AARON GRISSETT
__________

Appeal 2007-2157
Application 11/000,692
Technology Center 1700
__________

Decided: July 31, 2007
__________

Before ERIC GRIMES, LORA M. GREEN,
and NANCY J. LINCK Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a personal
cleansing kit. The Examiner has rejected the claims as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We reverse.
BACKGROUND
Implements such as woven and non-woven textiles, natural and
synthetic sponges, and loofahs have “long been utilized to enhance speed
and volume of lathering” for cleansing human skin (Specification 1).
Appeal 2007-2157
Application 11/000,692

However, “these articles over time breed bacteria, germs and mold” (id. at
2).
The Specification discloses “a personal cleansing kit and method
utilizing a washing implement that provides users with a cue to dispose of
the implement after a pre-determined number of washing events. . . . The
cue is the visual degradation of the implement from a pleated to a relatively
non-pleated condition” (id. at 3). The implement also signals users that the
implement is no longer suitable for use because “the relatively non-pleated
implement resulting from extended use becomes functionally inferior on
foam enhancement and aesthetic feel. The cushion effect of the pleated form
degrades to an elongated thin fibrous web of inferior body” (id. at 4).
DISCUSSION
1. CLAIMS
Claims 1-13 are pending and on appeal. Claim 1 is representative and
reads as follows:
Claim 1. A personal cleansing kit comprising:
(i) a water-insoluble fibrous web folded into a
plurality of pleats, each pleat being formed
with two forks into a U-shape with the two
forks being held together by hydroentangled
fibers or restrained from unfolding by a
weak adhesive to last from about 3 to about
100 separate personal washing events;
(ii) a cleansing composition comprising from
about 0.5 to about 60% by weight of
surfactants in a carrier, wherein each event
utilizes at least a foaming amount of the
cleansing composition.

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Thus, claim 1 is directed to a kit comprising (1) a water-insoluble
fibrous web and (2) a cleansing composition containing 0.5 to about 60% by
weight of surfactants. The fibrous web is folded into a number of U-shaped
pleats, with the two “forks” of the U held together by either hydroentangled
fibers or a weak adhesive.
The forks are held together such that they unfold after about 3 to 100
“washing events.” The Specification defines a “washing event” as “use of
the fibrous web against the body for a period from about 1 minute to 30
minutes.” (Specification 20).
2. PRIOR ART
The Examiner relies on the following references:
McMeekin US 6,957,924 Oct. 25, 2005
Gordon US 5,650,384 Jul. 22, 1997
Hauser WO 2004/006869 A1 Jan. 22, 2004
3. OBVIOUSNESS -- CLAIMS 1, 2, 4, 5, 7, 8, AND 10-13
Claims 1, 2, 4, 5, 7, 8, and 10-13 stand rejected under 35 U.S.C. § 103
as obvious in view of McMeekin and Gordon (Answer 3-5).1
The Examiner cites McMeekin as disclosing “a cleansing device for
personal hygiene, comprised of non-woven textile material such as
polypropylene or polyethylene or ethyl vinyl acetate copolymers or mixtures
thereof” (id. at 3). The Examiner finds that in a preferred embodiment the
cleansing device is “formed via folding or pleating, with two forks into a u
shape” that is “held together by an adhesive” (id.).

1 Examiner’s Answer mailed December 20, 2006.
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Noting that McMeekin’s cleansing device is to be used with an
“active ingredient such as surface acting agents,” the Examiner concedes
that “McMeekin . . . is silent with respect to the amount of surfactant
employed in said implement” (id.). To meet this deficiency, the Examiner
cites Gordon as disclosing “a cleansing kit comprising a lightweight
polymeric mesh prepared from extruded tubular net meshing and an
effective liquid cleanser . . . which comprised up to 35% by weight of
surfactants” (id. at 4, citations omitted).
The Examiner states that McMeekin’s cleansing device renders
obvious the limitation requiring the pleats to unfold after about 3 to about
100 personal washing events because McMeekin “teach[es] the preferred
non-woven polymeric materials and the preferred surfactant materials for
personal cleansing. Therefore, one skilled in the art would expect the non-
woven materials to exhibit similar characteristics under the same conditions,
absent a showing to the contrary” (id.).
Appellants argue that neither McMeekin nor Gordon teaches the
limitation in claim 1 requiring the forks of the cleaning implement’s pleats
to be restrained from unfolding for about 3 to 100 personal washing events
(Br. 7-9). Rather, Appellants argue, McMeekin uses a string intended to be
a permanent securement, and that “[n]othing in this references suggests that
after any certain number of cleansing uses, the string loosens to unfurl the
pleated film” (id. at 8). Appellants note that McMeekin also discloses using
an adhesive to secure the pleats of the cleaning implement, but argue that
“[n]othing weak or temporary is suggested for the adhesive” (id.).
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Appellants argue that Gordon similarly fails to disclose the
“fundamental aspect of the present invention” - “that the cleaning implement
(i.e. pleated fibrous web) must disintegrate in its physical geometry during a
relatively short cleansing lifetime” (id.). Appellants argue that the
references do not state anything about engineering a self-destructive element
into the cleansing implement, nor do “the references disclose or suggest
hydroentanglement between two forks of a pleat” (id. at 9).
We agree with Appellants that the cited references do not support a
prima facie case of obviousness. In particular, we agree that the references
would not have suggested a cleaning implement having pleats that are “held
together by hydroentangled fibers or restrained from unfolding by a weak
adhesive to last from about 3 to about 100” washing events.
The Specification does not define the term “weak adhesive.”
However, the Specification states that “adjacent pleats and forks can be
temporarily restrained from unfolding by a weak adhesive. Preferably an
applied adhesive will be water-soluble such as a starch or modified starch.
Synthetic polymers may also be employed as adhesives, an example of which
are the ethylene/vinyl acetate and polyvinyl pyrrolidone polymers”
(Specification 4, emphasis added).
McMeekin discloses that the textured film comprising the pleated
cleansing device can be made from “ethylene vinyl acetate copolymer”
(McMeekin, col. 3, ll. 65-67). Thus, the film constituting McMeekin’s
cleansing device can be made of the same material described in the
Specification as a weak adhesive.
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However, McMeekin does not describe using the same “ethylene
vinyl acetate copolymer” to adhere the pleats of the device to each other.
McMeekin states that the device includes a “securing means . . . for
substantially permanently holding the film together in the desired gathered
arrangement. As used herein, ‘substantially permanently’ means a period of
time at least as long as the film of the device is suitable for cleansing uses.”
(McMeekin, col. 3, ll. 54-58.) McMeekin discloses exemplary means of
substantially permanently securing the film (id. at col. 8, ll. 29-49), which do
not include the weak adhesives disclosed in the instant Specification.
The Examiner takes the position that the Specification
does not describe what constitute[s] a personal washing event.
In the claims[’] broadest sense, 3 to 100 personal washing
events may suggest washing 3 trucks 100 times. Accordingly,
the examiner contends that McMeekin et al teach the same
material with pleats which are adhered by an adhesive and the
examiner asserts that the non-woven material of McMeekin
would exhibit degradation in a similar manner, absent a
showing to the contrary.
(Answer 6-7.)

We do not agree with the Examiner’s position. As discussed above,
the Specification defines a “washing event” as “use of the fibrous web
against the body for a period from about 1 minute to 30 minutes”
(Specification 20). The Specification also states that “[e]ach event may
utilize from about 1 to about 50 grams, preferably from about 3 to about
15 grams of cleansing composition per event” (id.). Thus, it is clear from
the Specification that the “personal washing events” recited in the claims
include baths and showers but do not include washing vehicles.
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The Examiner’s reasoning – that McMeekin teaches the same pleated
material adhered by an adhesive and therefore would exhibit similar
degradation – is also not supported by the evidence. As discussed above,
McMeekin teaches that the pleats of its device should be adhered
“substantially permanently” while the instant claims require using an
adhesive that lasts only 3 to 100 personal washing events. The Examiner
has not adequately explained why the prior art device, which includes an
adhesive having different properties from those required by the claims,
would be expected to degrade in a similar manner to the claimed device.
The Examiner has not adequately shown that the adhesives disclosed
by McMeekin would result in unfolding after 3 to 100 washing events, or
adequately explained why those skilled in the art would have found it
obvious to use a weak adhesive or hydroentanglement to hold together the
pleats of McMeekin’s device. Therefore, the Examiner has not carried the
initial burden of showing prima facie obviousness. We reverse the rejection
of claims 1, 2, 4, 5, 7, 8, and 10-13 as obvious based on McMeekin and
Gordon.
4. OBVIOUSNESS -- CLAIMS 3, 6, AND 9
Claims 3, 6, and 9 stand rejected under 35 U.S.C. § 103 as being
obvious over McMeekin, Gordon, and Hauser (Answer 5). Claim 6, which
is representative of the rejected claims, recites “[t]he kit according to claim 1
wherein the fibrous web is hydroentangled.”
The Examiner relies on McMeekin and Gordon for the teachings
discussed above with respect to claim 1, and cites Hauser as disclosing “a
cleaning implement such as poufs, comprised of non-woven material such as
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polyethylene, polyesters, and polyolefins,” which can be made by
hydroentanglement (Answer 5). The Examiner concludes that one of
ordinary skill would have considered it obvious to “process the non-woven
synthetic materials of McMeekin et al in a hydroentanglement technique
because it would be cost effective in not requiring additional binding
material and as suggested by [Hauser] said hydroentangled technique
increases the strength of the materials” (id. at 6).
Appellants argue that Hauser fails to remedy the shortcomings of
McMeekin and Gordon (Br. 11). Appellants argue that even if Hauser were
“to suggest a pleated material formed from hydroentangled fiber, this still
would not negate the central elements of the independent claims. In those
claims, the hydroentanglement is between two forks of a pleat so as to hold
the forks temporarily together” (id.).
Although we agree with the Examiner that the limitation added by
claim 6 does not require that the pleats of the claimed device be held
together by hydroentanglement, we do not agree with his conclusion that the
cited references support a prima facie case of obviousness, because claim 6
incorporates the limitations of claim 1.
As discussed above, claim 1 requires the pleats to be held together by
either hydroentanglement or a weak adhesive, and the Examiner has not
adequately shown that that limitation was taught or suggested by McMeekin
or Gordon. The Examiner has also not pointed to anything in Hauser that
would have suggested adhering the pleats of McMeekin’s device by either
hydroentanglement or a weak adhesive. We therefore agree with Appellants
that Hauser does not remedy the deficiency of McMeekin and Gordon. We
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therefore reverse the rejection of claims 3, 6, and 9 as obvious over
McMeekin, Gordon, and Hauser.
SUMMARY
We reverse the obviousness rejection of claims 1, 2, 4, 5, 7, 8, and
10-13 over McMeekin and Gordon. We also reverse the obviousness
rejection of claims 3, 6, and 9 over McMeekin, Gordon, and Hauser.

REVERSED

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