Ex Parte Young et al

Patent Trial and Appeal Board

Nov 26, 2013

12261270 (P.T.A.B. Nov. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TERRILL A. YOUNG, DONALD C. ROE and
WILLIAM J. TOERNER
____________

Appeal 2012-010126
Application 12/261,270
Technology Center 1700
____________

Before TONI R. SCHEINER, RICHARD M. LEBOVITZ and
RAE LYNN P. GUEST, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL
This appeal involves claims to a composite fabric panel. The
Examiner has rejected the claims as obvious. We have jurisdiction under 35
U.S.C. § 134. We affirm.
STATEMENT OF CASE
The claims are drawn to a composite fabric panel comprising a
substrate comprising a material and elongate operative members combined
with the material of the substrate. The elongate operative members disperse
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an active agent in response to a stimulus. According to the specification, the
composite fabric panel may be included as a component of an absorbent
article such as a disposable diaper (Specification, p. 3, ll. 4-5). The active
agent can be various materials, including anti-microbials and anti-fungals
(id. at 7, ll. 21-23).
Claims 1, 3, 6-15, 17-22, and 24-26 are appealed and stand rejected by
the Examiner as follows:
1. Claims 1, 3, 7-9, 11, and 12 under 35 U.S.C. § 103(a) as obvious in
view of Morrison (US 3,959,556) and Hayford (US 3,585,998).
2. Claims 6, 13-15, 17-22, and 24-26 under 35 U.S.C. § 103(a) as
obvious in view of Morrison, Hayford and Teed (US 4,645,501).
3. Claims 1, 3, 6-15, 17-22, and 24-26 under 35 U.S.C. § 103(a) as
obvious in view of Chen (US 6,090,994), Morrison, and Hayford.
4. Claims 1, 3, 7-15, 17-22, and 24-26 under 35 U.S.C. § 103(a) as
obvious in view of Brandts (US 3,639,199) and Morrison.
5. Claim 6 under 35 U.S.C. § 103(a) as obvious in view of Brandts,
Morrison, and Sabee (US 4,910,064).
6. Claims 6, 13-15, 17-22, and 24-26 under 35 U.S.C. § 103(a) as
obvious in view of Brandts, Morrison, and Teed.
7. Claims 1, 3, 6-15, 17-22, and 24-26 under 35 U.S.C. § 103(a) as
obvious in view of Sabee and Morrison.
Claim 1 is representative and reads as follows:
1. A composite fabric panel comprising a substrate comprising
a material and a plurality of elongate operative members
combined with the material of the substrate, wherein the
elongate operative members are engaged with the substrate,
wherein the elongate operative members disperse an active
agent in response to a stimulus, and wherein at least some of the
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elongate operative members extend substantially along a
dimension of the substrate;
wherein the substrate includes a pair of overlapping nonwoven
fabric layers, and wherein the elongate operative members are
enclosed within the substrate between the layers.

We address the rejections as follows, although in a different order
than set forth by the Examiner.

4. BRANDTS AND MORRISON
The following are pertinent numbered findings of fact:
Brandts
B1. Brandts describes a “laminated product.” The product has a
central reinforcing layer 3 comprised of a pair of fibrillated webs 5 and 7 of
synthetic plastic film sandwiched between cellulosic webs 15 and 17
(Brandts, col. 1, ll. 65-68 and col. 2, ll. 12 and 18-23). The webs can be
made of paper of nonwoven material (Brandts, col. 3, ll. 64-65; col. 5, ll. 25-
29).
B2. Brandts teaches that “it may also be desirable to substitute for
one of the layers 5 or 7 or to provide an extra layer formed by spaced
elongated ribbons or strips of highly oriented plastic.” (Brandts, col. 2, ll.
30-35.)
B3. “The central reinforcing web 5 or 7 comprises a fibrillated film
made from a suitable fibrillatable polymer which has the required drape and
strength characteristics. It has been found that polyethylene and
polypropylene, for example, all operate very satisfactorily.” (Brandts, col. 2,
ll. 43-47.)
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B4. “The denier of the individual main filaments 9 of the fibrillated
film web can range from 1 to 500, i.e., up to 500.” (Brandts, col. 2, ll. 50-
51.)
B5. Brandts teaches that the laminated product can be a diaper
(Brandts, col. 2, l. 48).

Morrison
M1. Morrison describes an object of its invention as to provide yarns
comprised of naturally occurring fibers which possess antimicrobial
properties (Morrison, col. 1, ll. 49-56).
M2. Morrison describes making synthetic plastic fibers or filaments
comprising an antimicrobial agent, where the plastic can comprise
polypropylene (Morrison, col. 2, ll. 4-8 and 52-65; col. 3, ll. 26-32).
M3. Morrison teaches that the filaments are cut up and blended with
cotton fibers to form a yarn, which can be used to make products, such as
diapers, in which inhibition of bacterial and fungal growth is desired
(Morrison, col. 3, ll. 37-40; col. 4, ll. 39-44; col. 1, ll. 24-28.)
M4. Morrison describes its fabric as having a denier of 1.5 to 60 dpf
(Morrison, Abstract).

Discussion
Claim 1 is drawn to a composite fabric panel that comprises “elongate
operative members” which “disperse an active agent in response to a
stimulus.” The Examiner found that Brandts described fabric panel with
plastic elongate members enclosed within a pair of nonwoven fabric layers,
i.e., webs 5 and 7 sandwiched between cellulosic webs 15 and 17 (Answer
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10; B1 and B2). The Examiner found that Brandts does not describe an
active agent in the plastic member, but the Examiner found that it would
have been obvious “to make the plastic elongate members of Brandts
comprise a migrating anti-microbial agent [as an active agent], motivated by
a desire to provide the diaper with anti-microbial properties” as taught by
Morrison (Answer 10).
Appellant contends that Brandts teaches that the central reinforcing
layer 3, comprising webs 5 and 7, is to provide support to the two cellulosic
layers of material, and it does not comprise any naturally occurring fibers
(e.g., cotton) because of the weak, non-structural nature of such materials
(Appeal Br. 14). Appellant argues “Brandts discloses that the central
reinforcing layer 3 is comprised of polyethylene, polypropylene, or
polyvinyl alcohol. . . Therefore, the yarns of Morrison are not a suitable
material for the central reinforcing layer 3 of Brandts as such yarns
specifically are disclosed to comprise naturally occurring fibers that are
intimately admixed with synthetic fibers, thereby reducing the strength of
the yarns of Morrison.” (Id.)
This argument is not persuasive. Appellant has not provided
sufficient evidence that the yarn described in Morrison would not provide
sufficient strength. Morrison’s yarn comprises the same type of plastic
propylene fibers described in Brandts (B3 and M2). Morrison’s fabric
comprised of plastic propylene fibers falls within the denier range described
by Brandts (B4 and M4). Consequently, there is sufficient reason to believe
that Morrison’s yarn would be suitable as the central reinforcing web 5 or 7
of Brandts. Appellant’s argument to the contrary is principally attorney
argument without sufficient objective evidence to support it.
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In addition, Morrison’s synthetic fiber is a plastic polypropylene, as is
Brandts’s, and one of ordinary skill in the art would have recognized that the
polypropylene material could be used for the central reinforcing web, not
admixed with cotton fibers, to impart antimicrobial properties to Brandts’s
diaper for the reasons described in Morrison (M3). It would have been
within capabilities of a skilled artisan to provide the polypropylene material
with antimicrobial properties of Morrison in the elongated film form
described in Brandts.
For the foregoing reason, we affirm the rejection of claim 1 as
obvious in view of Brandts and Morrison. Appellant does not provide
separate arguments for claims 3, 7-15, 17-22, and 24-26 (Appeal Br. 15).
We affirm the rejection of these claims for the reason given by the
Examiner. 37 C.F.R. § 41.37 (c)(1)(vii).

5. BRANDTS, MORRISON, AND SABEE
The Examiner found that the combination of Brandts, Morrison, and
Sabee suggested all the limitations of claim 6 (Answer 12). Appellant did
not identify a deficiency in the Examiner’s rejection, other than arguing the
same reasons we found unpersuasive for Brandts and Morrison (Appeal Br.
16). We therefore affirm the rejection of claim 6 as obvious in view of
Brandts, Morrison, and Sabee for the reasons given by the Examiner.

6. BRANDTS, MORRISON, AND TEED
The Examiner found that the combination of Brandts, Morrison, and
Teed suggested all the limitations of claim 6, 13-15, 17-22, and 24-26
(Answer 12). Appellant did not identify a deficiency in the Examiner’s
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rejection, other than arguing the same reasons we found unpersuasive for
Brandts and Morrison (Appeal Br. 17). We affirm the rejection of claims 6,
13-15, 17-22, and 24-26 as obvious in view of Brandts, Morrison, and Teed
for the reasons given by the Examiner.

7. SABEE AND MORRISON
S1. Sabee describes “a composite fabric panel comprising a melt-
blown substrate and a plurality of parallel plastic elongate members engaged
directly with the substrate (see entire document including column 5, lines 3-
l3 and column 7, lines 53-65)” (Answer 13).
S2. Sabee teaches that the “elongate members [continuous filaments
of a synthetic polymer; see Sabee, col. 5, ll. 5-6] are enclosed within a pair
of overlapping nonwoven fabric layers (column 5, lines 3-13)” (Answer 13)
S3. The continuous filaments described by Sabee can be made of
polypropylene (Sabee, col. 8, l. 2-4).
S4. Sabee discloses that its materials can be used as diapers (Sabee,
col. 11, ll. 38-44).

Discussion
The Examiner found that Sabee describes a fabric panel comprising
elongate members (“continuous filaments of a synthetic fiber”) enclosed
within nonwoven fabric layers as recited in claim 1 (Answer 13). The
Examiner found that Sabee does not disclose the presence of an
antimicrobial agent as active agent, but found that this deficiency was made
up for by Morrison who “discloses that it is known in the diaper art to use
plastic fibers comprising a migrating anti-microbial agent to construct an
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anti-microbial diaper.” (Answer 13; see M3). Based on these teachings, the
Examiner determined it “would have been obvious to one having ordinary
skill in the art at the time the invention was made to make the elongate
members of Sabee comprise an anti-microbial agent, motivated by a desire
provide the diaper with antimicrobial properties (see column 1, lines 29-46
of Morrison)” (Answer 13).
Appellant contends that a person of ordinary skill in the art would not
have been motivated to add anti-microbial properties to the “elongate
members” of Sabee, other than by hindsight-based motivation provided by
the application involved in this appeal (Appeal Br. 19).
This argument is not persuasive. Morrison explicitly teaches the
desirability of using an antimicrobial agent in a diaper, providing a strong
reason to have modified Sabee by using such antimicrobial materials for
Sabee’s fibers, which are comprised of polypropylene as are Morrison’s (S3
and M2).
For the foregoing reasons, we affirm the rejection of claim 1 as
obvious in view of Sabee and Morrison. Appellant does not provide separate
arguments for claims 3, 6-15, 17-22, and 24-26 (Appeal Br. 20). We
therefore also affirm the rejection of these claims for the reason given by the
Examiner.

3. CHEN, MORRISON, AND HAYWARD
The following are pertinent numbered findings of fact:
C1. Chen describes a diaper comprising a “ventilating layer 30 made
of resilient material and mounted on an inner side of the outer layer 10, an
absorbent layer 20 arranged on the ventilating layer 30, and a permeable
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layer 40 made of non-woven fabric and disposed on the absorbent layer 20.”
(Chen, col. 2, ll. 26-30)
C2. “The ventilating layer 30 is made of resilient material and has an
outer frame provided with a plurality of convex cross-shaped ribs 31 each
enclosed with a circular edge” (Chen, col. 2, ll. 30-33)

Discussion
Chen describes a diaper with a ventilating layer having cross-shaped
ribs (C2). The Examiner found that Chen’s ribs serve as elongate operative
members as recited in claim 1 (Answer 7). The Examiner found that Chen
does not mention the elongate operative members comprising an
antimicrobial agent as active agent dispersed in the ribs, but found that
Morrison “discloses that it is known in the diaper art to construct diaper
plastic with a migrating anti-microbial agent to construct an anti-microbial
diaper (see entire document including the paragraph bridging columns 1 and
2).” (Id. at 8.) The Examiner determined that one of ordinary skill in the art
at the time of the invention would have had reason “to make the elongate
operative members of Chen with the anti-microbial migrating plastic,
motivated by a desire to produce the diaper with anti-microbial properties.”
(Id.)
Appellant contends that “Chen does not teach elongate operative
members that disperse an active agent in response to a stimulus, as claimed
in the present invention. As such, Chen does not alleviate the shortcomings
of Morrison and Hayford.” (Appeal Br. 12.) This argument is not
persuasive. As discussed above, the Examiner gave a logical reason to
modify Chen’s diaper by adding an antimicrobial agent as an active agent.
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Appellant did not identify a defect in this reasoning and we find none. See
37 C.F.R. § 41.37(c)(1)(vii); See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011) (holding that 37 C.F.R. § 41.37(c)(1)(vii) requires “more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art”). We affirm the rejection of claim 1 as obvious in view of Chen,
Morrison, and Hayward.
Appellant does not provide separate arguments for claims 3, 6-15, 17-
22, and 24-26 (Appeal Br. 12). We affirm the rejection of these claims for
the reason given by the Examiner.

1 AND 2. MORRISON.
Rejections 1 and 2 are based on the Examiner’s finding that Morrison
“discloses a plurality of woven elongate operative members that disperse an
active (anti-microbial) agent in response to a stimulus (wetting) (see entire
document including column 3, lines 10-68).” (Answer 5.) As argued by
Appellant, Morrison describes a fabric made of a yarn comprised of cut-up
filaments which include an anti-microbial agent (Appeal Br. 8). Neither the
cut-up filaments (M3) nor fabric comprised of the filaments and cotton (M3)
meet the claimed limitation of elongate operative members. Consequently,
we reverse Rejections 1 and 2 based on Morrison.

TIME PERIOD
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).

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AFFIRMED

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