The Procter & Gamble Company

Patent Trials and Appeals Board

Mar 25, 2020

14058376 - (D) (P.T.A.B. Mar. 25, 2020)

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.
14/058,376 10/21/2013 Han XU 12649L 1039
27752 7590 03/25/2020
THE PROCTER & GAMBLE COMPANY
GLOBAL IP SERVICES
CENTRAL BUILDING, C9
ONE PROCTER AND GAMBLE PLAZA
CINCINNATI, OH 45202
EXAMINER
SAWDON, ALICIA JANE
ART UNIT PAPER NUMBER
1781
NOTIFICATION DATE DELIVERY MODE
03/25/2020 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
centraldocket.im@pg.com
mayer.jk@pg.com
pair_pg@firsttofile.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HAN XU, JOHN FERRER, ANTONIUS LAMBERTUS DEBEER,
ZDENEK MECL, FRANTISEK KLASKA, JIRI KUMMER,
PAVLINA KASPARKOVA, and JAROSLAV KOHUT
____________

Appeal 2019-003684
Application 14/058,376
Technology Center 1700
____________

Before ROMULO H. DELMENDO, BEVERLY A. FRANKLIN, and
JANE E. INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 requests our review under 35 U.S.C. § 134(a) of the
Examiner’s decision to reject claims 1–27.2 We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies The Procter & Gamble Company as the
real party in interest. Appeal Brief filed January 7, 2019 (“Appeal Br.”) at 1.
2 Non-Final Office Action entered July 5, 2018 (“Office Act.”) at 1.
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CLAIMED SUBJECT MATTER
Claim 1 illustrates the subject matter on appeal, and is reproduced
below with subject matter of particular relevance to the present appeal
italicized:
1. An article comprising:
a liquid pervious layer;
a liquid impervious layer;
an absorbent core disposed between said liquid pervious
layer and said liquid impervious layer; and
a nonwoven web comprising:
at least a first layer of fibers that are made of a
first composition comprising a first polyolefin, a second
polyolefin, and a softness enhancer additive,
wherein said second polyolefin is a
propylene copolymer and
wherein said second polyolefin is a different
polyolefin than said first polyolefin; and
wherein the softness enhancer additive
comprises one or more saturated amides and one or
more unsaturated amides;
at least a second layer of fibers that are made of a
second composition void of propylene copolymers,
wherein fibers of the first layer have a different
denier than fibers of the second layer and
wherein a basis weight of the first layer is
substantially the same as a basis weight of the second
layer, and wherein the nonwoven web comprises a
neckdown modulus of 3.5 N/cm or greater.

Appeal Br. 8 (Claims Appendix) (emphasis added and spacing altered
relative to original).
REJECTIONS
The Examiner maintains the following rejections in the Examiner’s
Answer entered February 4, 2019 (“Ans.”):

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I. Claims 1–16 and 18–24 under 35 U.S.C. § 103(a) as
unpatentable over Lu3 in view of Dharmarajan,4 Peng,5 and Childs,6 as
evidenced by AIC Stearamide Specification Sheet;7
II. Claims 25–27 under 35 U.S.C. § 103(a) as unpatentable over
Lu in view of Dharmarajan and Peng, as evidenced by AIC Stearamide
Specification Sheet; and
III. Claim 17 under 35 U.S.C. § 103(a) as unpatentable over Lu in
view of Dharmarajan, Peng, Childs, and Cheng.8
FACTUAL FINDINGS AND ANALYSIS
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions, we affirm the Examiner’s rejections of
claims 1–27 under 35 U.S.C. § 103(a) for the reasons set forth in the Office
Action, the Answer, and below.
We review appealed rejections for reversible error based on the
arguments and evidence Appellant provides for each issue that Appellant

3 Although the Examiner’s rejections apply Lu et al. (WO 2011/088099 Al,
published July 21, 2011) as a prior art reference, the Examiner provides
citations to Lu et al. (US 2011/0282313 Al, published November 17, 2011)
when setting forth the rejections. Office Act. 3–22. Because Appellant does
not contest the Examiner’s citation to the U.S. application rather than the
PCT application, we likewise also cite the U.S. application when referring to
“Lu” for consistency with the Examiner’s rejection.
4 Dharmarajan et al. (WO 2010/039579 Al, published April 8, 2010,
“Dharmarajan”).
5 Peng et al. (US 6,740,609 Bl, issued May 25, 2004, “Peng”).
6 Childs et al. (US 6,357,137 Bl, issued March 19, 2002, “Childs”).
7 AIC Stearamide Specification Sheet
(http://aicma.com/products/Stearamide%20Finawax-
S%20Beads%20STEFIB.pdf) accessed 7/13/2017.
8 Cheng et al. (US 2007/0027262 Al, published February 1, 2007, “Cheng”).
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identifies. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637
F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the Examiner had
failed to make a prima facie case, “it has long been the Board’s practice to
require an applicant to identify the alleged error in the examiner’s
rejections”)).
Appellant presents arguments directed to independent claims 1, 22,
and 25, which Appellant argues together, and Appellant does not argue the
separate patentability of any of the dependent claims. Appeal Br. 3–7. We,
therefore, select claim 1 as representative, and decide the appeal as to claims
1–27 based on claim 1 alone. 37 C.F.R. § 41.37(c)(1)(iv).
Lu discloses bonded webs of nonwoven fabric, and discloses forming
the nonwoven webs into multilayer sheets that include two or more layers of
different types of nonwoven webs, such as sheet including a spunbond layer
and a meltblown layer. Lu ¶¶ 13, 41, 61, 78. Lu discloses forming the
filaments of the bonded webs from thermoplastic polymers or polymer
blends, such as a blend of polypropylene and polyethylene. Lu ¶¶ 72, 74,
75.
Lu discloses incorporating the multilayer sheets into absorbent articles
as “one or more of any element of an absorbent article.” Lu ¶ 26 (“any
embodiment of material disclosed herein can be used as part, or parts, or
substantially all, or all of one or more of any element of an absorbent article”
id.). Lu discloses disposable, wearable absorbent article 512A comprising
absorbent material 514A (absorbent core) disposed between liquid
permeable wearer-facing external layer 513A (liquid pervious layer) and
liquid impermeable garment-facing external layer 515A (liquid impervious
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layer). Lu ¶¶ 31–35; Fig. 5. Lu discloses that both liquid permeable wearer-
facing external layer 513A (liquid pervious layer) and liquid impermeable
garment-facing external layer 515A (liquid impervious layer) can include a
nonwoven material of Lu’s invention, such as a multilayer sheet described
above. Lu ¶¶ 26, 29, 30, 33, 35.
The Examiner finds that Lu does not disclose that Lu’s nonwoven
bonded web comprises a first layer of fibers made of a first composition
comprising a first polyolefin, a second polyolefin, and a softness enhancer
additive, and a second layer of fibers made of a second composition void of
propylene copolymers, where the fibers of the first layer have a different
denier than the fibers of the second layer, and the basis weight of the first
layer is substantially the same as a basis weight of the second layer. Office
Act. 3–4.
Dharmarajan, however, discloses a multilayer nonwoven fabric
comprising a facing layer and an elastic layer adjacent to the facing layer.
Dharmarajan ¶ 7. Dharmarajan discloses that the facing layer is soft and
extensible, and may comprise a polypropylene copolymer, a propylene-α-
olefin elastomer, and an additive. Dharmarajan ¶¶ 11, 14, 15, 19.
Dharmarajan discloses that the elastic layer may comprise “any material that
is elastic,” and Dharmarajan lists numerous exemplary materials suitable for
forming the elastic layer, all but one of which do not include propylene
copolymers. Dharmarajan ¶ 17. Dharmarajan discloses that the facing layer
may be spunbonded, while the elastic layer may be meltblown, and
Dharmarajan explains that meltblown fabrics “differ from the traditional
spunbonded fabrics by having lower fiber denier (fineness).” Dharmarajan
¶¶ 40, 44.
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In view of these disclosures in Dharmarajan, the Examiner concludes
that it would have been obvious to one of ordinary skill in the art at the time
of Appellant’s invention to use Dharmarajan’s multilayer nonwoven fabric
as the multilayer sheet constituting the wearer-facing external layer of Lu’s
absorbent article, so that the facing layer of Lu’s multilayer sheet (or
nonwoven fabric) would be soft and extensible, as disclosed in Dharmarajan.
Office Act. 4.
Appellant does not dispute the Examiner’s finding that although
Dharmarajan does not disclose that the additive included in the facing layer
is a softness enhancer, “Dharmarajan is not particularly concerned with the
specific additive used, and that it would be within the purview of one of
ordinary skill to include the desired additives to obtain the desired properties
of the final product.” Compare Office Act. 4–5, with Appeal Br. 3–7.
To this end, Peng discloses that incorporating a blend of fatty acid
amides comprising erucamide and stearamide into a polypropylene resin
used to form fibers of a nonwoven fabric imparts “distinct tactile and ductile
softness” to the fabric, without negatively impacting the physical properties
of the fabric, such as tensile strength. Peng col. 2, ll. 29–30. The Examiner
finds that paragraph 38 of Appellant’s Specification indicates that erucamide
is an unsaturated amide, while AIC evidences that stearamide is a saturated
amide. Office Act. 5. In view of the above disclosures in Peng, the
Examiner concludes that it would have been obvious to one of ordinary skill
in the art at the time of Appellant’s invention to include the fatty acid amide
blend disclosed in Peng as the additive in the facing layer of Dharmarajan’s
multilayer nonwoven fabric, when using Dharmarajan’s multilayer
nonwoven fabric as the multilayer sheet constituting the wearer-facing
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external layer of Lu’s absorbent article, to provide tactile and ductile
softness to Lu’s modified wearer-facing external layer. Office Act. 5.
Although, as discussed above, Dharmarajan discloses that the facing
layer of Dharmarajan’s multilayer nonwoven fabric may be spunbonded and
the elastic layer may be meltblown, with the elastic meltblown layer having
lower fiber denier (fineness) than the spunbonded layer, the Examiner finds
that Dharmarajan does not discloses that the facing and elastic layers have
substantially the same basis weight. Office Act. 5.
Childs, however, discloses a dryer-activated fabric treatment article
comprising a conditioning composition attached to a nonwoven fabric
substrate. Childs col. 1, ll. 16–27. Childs discloses forming the nonwoven
substrate by layering a 4 or 6 denier fiber onto a continuous 12 denier fiber
layer “at the same basis weight.” Childs col. 2, ll. 26–41. Childs discloses
that a nonwoven substrate so formed has an increased thickness, resulting in
a higher loading capacity, and “deliver[s] a significant improvement in
fabric strength over a fabric with the same basis eight made from 12 denier
fiber only.” Childs col. 2, ll. 32–41. Childs discloses that the “percentage of
various deniers as well as the order of application of the deniers can be
changed to produce variations in substrate physical properties such as
substrate thickness or sheet feel.” Childs col. 5, ll. 31–34.
In view of these disclosures in Childs, the Examiner concludes that it
would have been obvious to one of ordinary skill in the art at the time of
Appellant’s invention to form the facing and elastic layers of Dharmarajan’s
multilayer nonwoven fabric to have the same basis weight using fibers
having different denier, as disclosed in Childs, when using Dharmarajan’s
multilayer nonwoven fabric as the multilayer sheet constituting the wearer-
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facing external layer of Lu’s absorbent article, so that Lu’s modified wearer-
facing external layer would have “the tensile strength of the lower denier
and the thickness and coating capacity of the higher denier.” Office Act. 5–
6.
Appellant argues that the Examiner “picks and chooses disclosure
from . . . separate references,” and, Appellant argues, although the Examiner
“sets forth alleged reasons for why one skilled in the art would be motivated
to combine the teachings of the multiple references, there are no reasons
given why the skilled artisan would rationally seize on the particular species
of materials disclosed in a long list of options disclosed in the references,
which in combination would lead to the pending subject matter.” Appeal Br.
4. Appellant argues that the Examiner’s rejection, therefore, “rel[ies] on
hindsight.” Id.
Appellant’s arguments do not identify reversible error in the
Examiner’s rejection, for reasons that follow.
As discussed above, Lu discloses an absorbent article including a
wearer-facing external layer formed of a multilayer sheet of nonwoven web
layers. Lu ¶¶ 13, 26, 41, 61, 78. As also discussed above, Dharmarajan
discloses a multilayer nonwoven fabric comprising a soft and extensible
facing layer comprising a polypropylene copolymer, a propylene-α-olefin
elastomer, and an additive, and an elastic layer adjacent the facing layer that
may comprise a material that does not include propylene copolymers.
Dharmarajan ¶¶ 11, 14, 15, 17, 19. As further discussed above, Peng
discloses an additive comprising a blend of a saturated and unsaturated
amide that imparts tactile and ductile softness to nonwoven fabrics. Peng
col. 2, ll. 29–47. And Childs discloses forming a nonwoven fabric substrate
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by layering a lower denier fiber on a higher denier fiber at the same basis
weight to impart increased thickness and significantly improved fabric
strength to the nonwoven fabric. Childs col. 2, ll. 26–41.
The Examiner’s proposed combination of Lu, Dharmarajan, Peng, and
Childs is based on using Dharmarajan’s multilayer nonwoven fabric
including Peng’s additive as the multilayer sheet constituting the wearer-
facing external layer of Lu’s absorbent article, so that the facing layer of
Lu’s multilayer sheet (or nonwoven fabric) would be soft and extensible, as
disclosed in Dharmarajan, and forming the facing and elastic layers of
Dharmarajan’s multilayer nonwoven fabric to have the same basis weight
using fibers having different denier, as disclosed in Childs and Dharmarajan,
respectively, to enhance the tensile strength and coating capacity of the
nonwoven fabric. Office Act. 3–6.
The propylene-α-olefin elastomer in the (first) facing layer of
Dharmarajan’s multilayer nonwoven fabric corresponds to the first
polyolefin recited in claim 1, the polypropylene copolymer in Dharmarajan’s
(first) facing layer corresponds to the second polyolefin recited in claim 1
that is different from the first polyolefin and is a propylene copolymer, and
the numerous materials disclosed in Dharmarajan for forming the (second)
elastic layer of Dharmarajan’s multilayer nonwoven fabric, which do not
include a propylene copolymer, each correspond to a material void of
propylene copolymers recited in claim 1 used to form the second layer of the
recited nonwoven web. Including Peng’s blend of fatty acid amides
comprising erucamide and stearamide as the additive in Dharmarajan’s
facing layer would result in the softness enhancer additive comprising one or
more saturated amides and one or more unsaturated amides recited in claim
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1.
Although Appellant argues that the Examiner does not provide
reasons “why the skilled artisan would rationally seize on the particular
species of materials disclosed in a long list of options disclosed in the
references, which in combination would lead to the pending subject matter”
(Appeal Br. 4), claim 1 broadly recites a nonwoven web comprising (1) at
least a first layer of fibers that are made of a first composition comprising (a)
a first polyolefin, (b) a second polyolefin that is different from the first
polyolefin and is a propylene copolymer and, and (c) a softness enhancer
additive; and (2) at least a second layer of fibers that are made of a second
composition void of propylene copolymers.
One of ordinary skill in the art seeking to produce a multilayer
nonwoven fabric as disclosed in Dharmarajan for use as the multilayer sheet
constituting the wearer-facing external layer of Lu’s absorbent article would
have found it obvious to utilize any of the suitable materials and additives
suggested by the combined disclosures of Lu, Dharmarajan, Peng, and
Childs for forming such a multilayer nonwoven fabric, including those
encompassed by the nonwoven web recited in claim 1. The disclosure in Lu,
Dharmarajan, Peng, and Childs of numerous suitable materials and
additives, and combinations thereof, for producing a multilayer nonwoven
fabric does not render any particular combination any less obvious, because
the references are available for all they would have taught and suggested to
one of ordinary skill in the art at the time of Appellant’s invention. Merck &
Co., Inc. v. Biocraft Labs, Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (“That
the ’813 patent discloses a multitude of effective combinations does not
render any particular formulation less obvious. This is especially true
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because the claimed composition is used for the identical purpose.”); In re
Susi, 440 F.2d 442, 445 (CCPA 1971) (obviousness rejection affirmed where
the disclosure of the prior art was “huge, but it undeniably include[d] at least
some of the compounds recited in appellant’s generic claims and [was] of a
class of chemicals to be used for the same purpose as appellant’s additives”).
Although Appellant argues that the Examiner’s rejection
impermissibly relies on hindsight, the Examiner’s rejection is based on the
explicit disclosures of the applied prior art references, and what a
combination of those disclosures would have taught and suggested to one of
ordinary skill in the art at the time of Appellant’s invention. Contrary to
Appellant’s argument, the Examiner’s rejection, therefore, is not based on
impermissible hindsight. In re McLaughlin, 443 F.2d 1392, 1395 (CCPA
1971) (Explaining that a rejection does not rely on improper hindsight
reconstruction “so long as it takes into account only knowledge which was
within the level of ordinary skill at the time the claimed invention was made
and does not include knowledge gleaned only from applicant's disclosure.”).
Appellant argues that Dharmarajan “does not teach or suggest
propylene copolymers should be avoided” in the second fiber layer of the
nonwoven fabric described in the reference. Appeal Br. 5. Appellant argues
that paragraph 16 of Dharmarajan discloses that certain polypropylene
copolymers can be used to form the elastic/extensible material of the second
fiber layer, and paragraph 17, cited by the Examiner, “then follows by
disclosing specific materials that can be used for the elastic layer.” Id.
Appellant argues that one of ordinary skill in the art looking at Dharmarajan
as a whole would understand that certain polypropylene copolymers could
be used to form the elastic material of the second fiber layer. Id.
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Appellant’s arguments again do not identify reversible error in the
Examiner’s rejection, for the following reasons.
Paragraph 16 of Dharmarajan defines “elastic” and “extensible,” and
indicates that “[e]xtensible fabrics are formed from a material that is
extensible (e.g., polyurethanes, styrenic block copolymers, ethylene vinyl
acetates, certain polypropylene copolymers, polyethylenes, and blends
thereof), or formed by mechanically distorting or twisting a fabric (natural or
synthetic).” Paragraph 17 of Dharmarajan discloses suitable materials for
forming the (second) elastic layer of Dharmarajan’s multilayer nonwoven
fabric, and lists twenty-eight exemplary suitable elastic materials, only one
of which includes propylene (propylene-α-olefin elastomer). The Examiner,
therefore, cited paragraph 17, rather than paragraph 16, of Dharmarajan for
disclosure of suitable materials for forming the (second) elastic layer of
Dharmarajan’s multilayer nonwoven fabric.
The disclosure in paragraph 16 of Dharmarajan that certain
polypropylene copolymers are extensible materials, and the disclosure in
paragraph 17 that propylene-α-olefin elastomer is a suitable material for
forming the (second) elastic layer of Dharmarajan’s multilayer nonwoven
fabric, do not negate Dharmarajan’s disclosure of a multitude of suitable
materials for forming the elastic layer that do not include propylene
copolymers. Although Dharmarajan does not explicitly disclose that
inclusion of propylene copolymers in the elastic layer should be avoided,
Dharmarajan’s disclosures as a whole would have suggested that any of the
materials described in the reference as suitable for forming the (second)
elastic layer of Dharmarajan’s multilayer nonwoven fabric could be
successfully used to form the elastic layer, including the numerous explicitly
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disclosed materials that do not include polypropylene copolymers, as recited
in claim 1.
Appellant argues that the reason provided by the Examiner for
combining Childs with Lu of achieving a tensile strength of lower denier
fibers and a thickness and coating capacity of higher denier fibers “is
insufficient and does not provide a rational basis.” Appeal Br. 6. As to
tensile strength, Appellant argues that “Childs explains that certain deniers
do not have the strength required for processing,” but “such processing in
Childs would not necessarily be the same as the processing of the articles
disclosed in Lu, as Lu is not concerned with producing dryer-activated fabric
treatment products.” Id. at 5. And as to the coating capacity of higher
denier fibers, Appellant argues that “[a]bsorbent articles such as those
disclosed in Lu would not need enhanced coating capacity for fabric
condition compositions.” Appeal Br. 5–6.
As discussed above, however, Dharmarajan discloses that the facing
layer of Dharmarajan’s multilayer nonwoven fabric may be spunbonded and
the elastic layer may be meltblown, with the elastic meltblown layer having
lower fiber denier (fineness) than the spunbonded layer, corresponding to
fibers of a first layer having a different denier than fibers of a second layer
recited in claim 1. As also discussed above, Childs discloses that forming a
nonwoven fabric by layering a lower denier fiber on a higher denier fiber at
the same basis weight delivers a significant improvement in fabric strength.
One of ordinary skill in the art seeking to enhance the strength of a
multilayer nonwoven fabric as disclosed in Dharmarajan for use as the
multilayer sheet constituting the wearer-facing external layer of Lu’s
absorbent article, would have formed the facing and elastic layers of
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Dharmarajan’s multilayer nonwoven fabric to have the same basis weight as
disclosed in Childs using fibers having different denier, as disclosed in both
Dharmarajan and Childs.
The disclosure in Childs referred to by Appellant states in its entirety:
Substrates of a higher denier, for example 10 denier or higher,
tend to have a greater thickness and coating capacity but do not
have the tensile strength required for processing. By combining
the lower denier fibers with the higher denier fibers, a substrate
is produced that has the tensile strength of the lower denier
combined with the thickness and coating capacity of the higher
denier substrate.
Childs col. 1, l. 66–col. 2, l. 5. Childs does not specify the type of
“processing” that higher denier substrates lack sufficient tensile strength to
withstand. Such processing could, for example, relate to manufacturing
processes rather than processing during use in a clothes dryer.
Consequently, without more, Appellant’s argument that the “processing”
disclosed in Childs “would not necessarily be the same as the processing of
the articles disclosed in Lu” (Appeal Br. 5) does not support Appellant’s
assertion that the Examiner’s reasons for combining Childs with Lu are
insufficient and lack a rational basis.
And although Appellant argues that “[a]bsorbent articles such as those
disclosed in Lu would not need enhanced coating capacity for fabric
condition compositions” (id. at 4), enhanced coating capacity is not the only
advantage disclosed in Childs imparted by producing a nonwoven fabric by
layering lower denier fibers onto higher denier fibers at the same basis
weight. As discussed above, Childs discloses that forming a nonwoven
fabric by layering a lower denier fiber on a higher denier fiber at the same
basis weight delivers a significant improvement in fabric strength. And
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Dharmarajan discloses that the facing layer of Dharmarajan’s multilayer
nonwoven fabric may be spunbonded and the elastic layer may be
meltblown, with the elastic meltblown layer having lower fiber denier
(fineness) than the spunbonded layer. One of ordinary skill in the art
seeking to enhance the strength of a multilayer nonwoven fabric as disclosed
in Dharmarajan for use as the multilayer sheet constituting the wearer-facing
external layer of Lu’s absorbent article, would have formed the facing and
elastic layers of Dharmarajan’s multilayer nonwoven fabric to have the same
basis weight as disclosed in Childs using fibers having different denier, as
disclosed in both Dharmarajan and Childs.
Appellant argues that Childs is nonanalogous art because Childs is not
in the same field of endeavor as the presently claimed invention. Appeal Br.
6. Appellant argues that Childs is in the field of invention of dryer-activated
fabric treatment products that can comprise nonwoven fabrics, while “the
present claims are directed to nonwovens in an article comprising a liquid
pervious layer; a liquid impervious layer; an absorbent core disposed
between said layers, such as absorbent articles which are worn.” Appeal Br.
6 (citing Childs col. 1, ll. 13–20; Spec. p. 29, ll. 26–32; and pending claims
1–27). Appellant argues that Childs is also not reasonably pertinent to the
problem faced by the present inventors of providing “good tactile properties
and less necking with polyolefin-based nonwovens for worn, absorbent
articles” because Childs teaches nonwovens incorporated into dryer-
activated fabric treatment products having improved ability to hold fabric
conditioner compositions (coating capacity) due to increased substrate
thickness. Appeal Br. 6–7 (citing Substitute Spec. p. 1, ll. 31–32; Childs
Abstr.; col. 2, ll. 12–18, 26–31).
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A reference is analogous art if it is either in the field of the inventors’
endeavor, or is reasonably pertinent to the particular problem with which the
inventors were concerned. In re Kahn, 441 F.3d 977, 987 (Fed. Cir. 2006).
The test for determining an applicant’s field of endeavor “requires the PTO
to determine the appropriate field of endeavor by reference to explanations
of the invention’s subject matter in the patent application, including the
embodiments, function, and structure of the claimed invention.” In re Bigio,
381 F.3d 1320, 1325 (Fed. Cir. 2004) (reference describing a toothbrush
found to be in the same field of endeavor as a claim to a hairbrush based on
findings regarding function and structural similarity); see also In re Wood,
599 F.2d 1032, 1036 (CCPA 1979) (crediting description of the field of
endeavor contained in the application’s specification).
Appellant’s Specification indicates that the “Field of the Invention”
“generally relates to products and other articles of manufacture that include a
nonwoven web having good tactile and mechanical properties.” Substitute
Spec. p. 1, ll. 5–6.
The Specification indicates that “one embodiment of the invention” is
a nonwoven web illustrated in Figure 1 comprising “a bottom fibrous layer
110 and a top fibrous layer 210 that is laid on top of the bottom fibrous layer
110 during the manufacturing process of the 15 nonwoven web 10.”
Substitute Spec. p. 6, ll. 12–15. The Specification also discloses that “Figure
2 illustrates a schematic cross-section view of another embodiment of a
nonwoven web 10 that includes a bottom fibrous layer 110, a top fibrous
layer 210 and at least one intermediate fibrous layer 310 disposed between
the top and bottom fibrous layers.” Substitute Spec. p. 16, ll. 30–32.
The Specification discloses that “Figure 6 shows a schematic cross-
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section view of a product, more particularly, an absorbent article 50 that may
benefit from the use of any of the nonwoven webs 10 previously discussed.”
Substitute Spec. p. 29, ll. 26–27. The Specification also discloses that “any
of the nonwoven webs of the invention described hereinbefore may also be
advantageously used in any other products that may benefit from improved
tactile properties.” Substitute Spec. p. 38, ll. 25–27.
Appellant’s Specification thus explicitly indicates that the field of
Appellant’s invention relates to products and other articles of manufacture
that include a nonwoven web having good tactile and mechanical properties.
And the Specification describes numerous embodiments of Appellant’s
invention directed to nonwoven webs that have two fiber layers, which are
structurally similar to the nonwoven substrate disclosed in Childs that
includes two fiber layers. One of ordinary skill in the art, therefore,
reasonably would have understood that the dryer-activated fabric treatment
article comprising a conditioning composition attached to a nonwoven fabric
substrate disclosed in Childs is within the field of the inventor’s endeavor—
products including nonwoven webs having good tactile and mechanical
properties.
Even if Childs were not in the field of the inventors’ endeavor, the
multilayer nonwoven fabric substrate disclosed in Childs is reasonably
pertinent to the particular problem with which the inventors were concerned.
“A reference is reasonably pertinent if, even though it may be in a different
field from that of the inventor’s endeavor, it is one which, because of the
matter with which it deals, logically would have commended itself to an
inventor’s attention in considering his problem.” In re Clay, 966 F.2d 656,
659 (Fed. Cir. 1992).
Appeal 2019-003684
Application 14/058,376

18
One of ordinary skill in the art seeking to produce a nonwoven web
having good tactile and mechanical properties reasonably would have looked
to Childs’ disclosure that forming a nonwoven fabric substrate by layering a
lower denier fiber onto a higher denier fiber at the same basis weight imparts
significantly improved strength to the resulting fabric, relative to a fabric
produced with only higher denier fiber. Childs col. 2, ll. 26–41. The
ordinarily skilled artisan seeking to produce a nonwoven web having good
tactile and mechanical properties also reasonably would have looked to
Childs’s disclosure that the “[p]ercentage of various deniers as well as the
order of application of the deniers can be changed to produce variations in
substrate physical properties such as substrate thickness or sheet feel.”
Childs col. 5, ll. 31–34.
We, accordingly, sustain the Examiner’s rejections of claims 1–27
under 35 U.S.C. § 103(a).
CONCLUSION

Claims

35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–16, 18–24 103(a) Lu, Dharmarajan,
Peng, Childs,
AIC
1–16, 18–24
25–27 103(a) Lu, Dharmarajan,
Peng, AIC
25–27
17 103(a) Lu, Dharmarajan,
Peng, Childs,
Cheng
17
Overall
Outcome
1–27

Appeal 2019-003684
Application 14/058,376

19
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).

AFFIRMED