Ex Parte Qin et al

Patent Trial and Appeal Board

Aug 25, 2017

14109632 (P.T.A.B. Aug. 25, 2017)

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.
14/109,632 12/17/2013 Jian Qin KCX-1845-CIP
64928031US01
5382
111049 7590 08/25/2017
DOR TTY & MANNING PA anH KTMRFRT Y-fT ARK EXAMINER
WORLDWIDE, INC.
POST OFFICE BOX 1449
VAN SELL, NATHAN L
GREENVILLE, SC 29602-1449 ART UNIT PAPER NUMBER
1783
MAIL DATE DELIVERY MODE
08/25/2017 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 PATENT TRIAL AND APPEAL BOARD
Ex parte JIAN QIN, DONALD EUGENE WALDROUP, DEBORAH JOY
CALEWARTS, and KEYUR DESAI
(Applicant: Kimberly-Clarke Worldwide, Inc.)
Appeal 2016-003243
Application 14/109,632
Technology Center 1700
Before BEVERLY A. FRANKLIN, KAREN M. HASTINGS, and
SHELDON M. McGEE, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1—19 under 35 U.S.C. § 103(a) as unpatentable over at
least the basic combination of VanSumeren (US 2008/0009586 Al, published
Jan. 10, 2008), and Chen (US 2001/0024716 Al, published Sept. 27, 2001).1
We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
WE AFFIRM.
1 The Examiner also applies Herfert (US 2005/0153123 Al, published July
14, 2005) in combination with VanSumeren and Chen to claims 2, 7—9, 11—
15, and 19 (Final Action 5—7).
Appeal 2016-003243
Application 14/109,632
Claim 1 is illustrative of the claimed subject matter (emphasis added to
highlight contested limitations):
1. A non woven material comprising:
a fibrous web defining a creped surface, the fibrous web
having a bulk of greater than 5 cc/g; and
an additive composition present on the creped surface of
the fibrous web, the additive composition comprises a polyolefin
copolymer combined with a nonionic surfactant, the additive
composition comprising the nonionic surfactant in an amount up
to 50% by weight and wherein the material exhibits an
elongation at break of above 30%.
ANALYSIS
Upon consideration of the evidence in this appeal and each of
Appellants’ contentions, we find that the preponderance of evidence on this
record supports the Examiner’s conclusion that the subject matter of
Appellants’ claims is unpatentable over the applied prior art. We sustain the
Examiner’s § 103 rejections essentially for the reasons set out by the
Examiner in the Answer.
We add the following for emphasis.
Appellants’ main argument is that there is no reason to modify
VanSumeren to have a density above 5 cc/g based on Chen because these two
references are directed to different utilities for their respective nonwoven
materials, and VanSumeren teaches one “especially having a specific volume
of less than 3 cc/gm” (VanSumeren 111; App. Br. 5—7; also Reply Br.
generally). With respect to the rejection of the dependent claim grouping
using Herfert, Appellants also point out that there is no reason absent
impermissible hindsight to combine Herfert with VanSumeren, again because
of their respective different utilities (App. Br. 10—11; Reply Br. 6).
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Appeal 2016-003243
Application 14/109,632
Appellants’ arguments do not convince us of reversible error because
they do not fully appreciate the inferences of the applied references that are
presented on this record for our review.
It has been established that “the [obviousness] analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR Int 7 Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007). Likewise, it is also well settled that a
reference stands for all of the specific teachings thereof as well as the
inferences one of ordinary skill in the art would have reasonably been
expected to draw therefrom. See In reFritch, 972 F.2d 1260, 1264—65 (Fed.
Cir. 1992).
As pointed out by the Examiner, contrary to Appellants’ position,
VanSumeren does indeed suggest use of its nonwoven materials in diapers
and other absorbent articles, the same utilities as Chen and Herfert (Ans. 8, 9;
see also VanSumeren 1251 (stating its webs “can be used in diapers, sanitary
napkins, composite materials”)). Thus, the evidence supports the Examiner’s
position that Appellants have not adequately “considered all the
embodiments considered by VanSumeren” (Ans. 9).
Appellants further argue that VanSumeren does not teach the
elongation at break property of above 30% recited in claim 1 (App. Br. 8,9).
However, we agree with the Examiner that optimizing this property would
have been prima facie obvious in light of VanSumeren’s discussion of this
property for the polyolefin interpolymers used therein being over 600
percent, and even “at least 900 percent” (VanSumeren 161; see also, Ans.
11, 12). Accordingly, there is no doubt that how much polyolefin polymer is
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Appeal 2016-003243
Application 14/109,632
used with the nonwoven material is going to affect its elongation at break
property. “A recognition in the prior art that a property is affected by the
variable is sufficient to find the variable result-effective.” In re Applied
Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012).
In light of these circumstances, Appellants have not identified
reversible error in the Examiner’s de facto determination that one of ordinary
skill in the art would have inferred that “combin[ing] the nonwoven materials
of VanSumeren with the fibrous absorbent material of Chen for wet-stable,
high void volume nonwoven materials” and achieve a density of greater than
5 cc/g as taught in Chen would have been a predictable and appropriate use
of VanSumeren’s nonwoven material, and that it would have been obvious,
using no more than ordinary creativity, to optimize the amount of polymer to
achieve an elongation at break of at least 30% (e.g., Ans. 9).
Appellants have also not identified any error in the Examiner’s
determination that it would have been obvious to one skilled in the art, using
no more than ordinary creativity, to have “combine[d] the cellulosic webs of
VanSumeren and Chen with the flexible absorbent sheet material of Herfert
for cellulosic webs that are super absorbent” (Ans. 14). In re Keller, 642
F.2d 413, 425 (CCPA 1981) (“The test for obviousness is not whether the
features of a secondary reference may be bodily incorporated into the
structure of the primary reference. . . . Rather, the test is what the combined
teachings of [those] references would have suggested to those of ordinary
skill in the art.”).
Accordingly, we affirm the Examiner’s rejections.
The Examiner’s decision is affirmed.
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Appeal 2016-003243
Application 14/109,632
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
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