Ex Parte Carlucci et al

Patent Trial and Appeal Board

Sep 26, 2017

12970037 (P.T.A.B. Sep. 26, 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.
12/970,037 12/16/2010 Giovanni Carlucci CM3454 5335
27752 7590 09/28/2017
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
TATESURE, VINCENT
ART UNIT PAPER NUMBER
1786
NOTIFICATION DATE DELIVERY MODE
09/28/2017 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
pair_pg @ firsttofile. com
mayer.jk @ pg. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GIOVANNI CARLUCCI,
MAURIZIO TAMBURRO, and EVELINA SURA TORO1
Appeal 2016-008725
Application 12/970,037
Technology Center 1700
Before GEORGE C. BEST, CHRISTOPHER L. OGDEN, and
MONTE T. SQUIRE, Administrative Patent Judges.
SQUIRE, Administrative Patent Judge.
DECISION ON APPEAL2
Appellants appeal the Examiner’s decision finally rejecting claims 1—
3,5, and 7—14, which constitute all the claims pending in this application.
35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify The Procter & Gamble Company of Cincinnati, Ohio
as the real party in interest. App. Br. 1.
2 In our Decision, we refer to the Specification filed December 16, 2010
(“Spec.”); Final Office Action dated August 27, 2015 (“Final Act.”); Appeal
Brief dated May 9, 2016 (“App. Br.”); Examiner’s Answer to the Appeal
Brief dated August 25, 2016 (“Ans.”); and Reply Brief dated September 23,
2016.
Appeal 2016-008725
Application 12/970,037
The Claimed Invention
Appellants’ disclosure relates to an absorbent core comprising super
absorbent polymer particles and a pattern of adhesive for use in disposable
absorbent articles, such as sanitary napkins. Abstract; Spec. 1. Claim 1 is
illustrative of the claimed subject matter on appeal and is reproduced below
from the Claims Appendix to the Appeal Brief (App. Br. 8) (key disputed
claim language italicized and bolded and indentation added):
1. An absorbent core having a longitudinal and a
transversal axis; the absorbent core comprises a cover
layer having a first and a second surface, a layer of first
auxiliary adhesive deposited on the second surface of the
cover layer, a substrate layer having a first and a second
surface, an absorbent layer comprising a layer of super
absorbent polymer particles and a layer of thermoplastic
adhesive, and a layer of second auxiliary adhesive
deposited on the first surface of the substrate layer;
wherein the layer of super absorbent polymer
particles is comprised between the second surface of the
cover layer and the first surface of the substrate layer,
and wherein the layer of super absorbent polymer
particles comprises a plurality of open areas, each of the
open areas having a diameter of less than 10 mm;
wherein the layer of thermoplastic adhesive covers the
layer of super absorbent polymer particles on the first
surface of the substrate layer;
wherein the layer of second auxiliary adhesive is
continuous;
more than 15%, of the surface area of the second
surface of the cover layer; and
wherein the layer of the first auxiliary adhesive is
deposited in a pattern of stripes that are parallel to the
longitudinal axis of the absorbent core and wherein the
first auxiliary adhesive is deposited at a basis weight of
4 g/m2 to 11 g/m2.
2
Appeal 2016-008725
Application 12/970,037
The References
The Examiner relies on the following prior art references as evidence
in rejecting the claims on appeal:
Zenker et al.,
(hereinafter “Zenker”)
US 6,245,051 B1 June 12, 2001
Zhao et al.,
(hereinafter “Zhao”)
US 2005/0282456 Al Dec. 22, 2005
Noda et al.,
(hereinafter “Noda”)
US 2007/0282287 Al Dec. 6, 2007
Hanao et al.,
(hereinafter “Hanao”)
US 2008/0044616 Al Feb. 21,2008
Qin et al.,
(hereinafter “Qin”)
US 2008/0082069 Al Apr. 3, 2008
Carlucci et al.,
(hereinafter “Carlucci”)
US 2008/0091159 Al Apr. 17, 2008
Hundorf et al., US 2008/0312618 Al Dec. 18, 2008
(hereinafter “Hundorf’)
The Rejections
On appeal, the Examiner maintains the following rejections:
1. Claims 1—3, 5, 7—9, and 13 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Hundorf in view of Noda, Zenker, Zhao,
and Hanao (“Rejection 1”). Final Act. 2; Ans. 2.
2. Claim 10 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hundorf in view of Noda, Zenker, Zhao, and Hanao, as
applied to claims 1—3, 5, 7—9, and 13 above, and further in view of Qin
(“Rejection 2”). Final Act. 7; Ans. 7.
3. Claims 11, 12, and 14 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Hundorf in view of Noda, Zenker, Zhao, and
3
Appeal 2016-008725
Application 12/970,037
Hanao, as applied to claims 1—3, 5, 7—9, and 13 above, and in further view of
Carlucci (“Rejection 3”). Final Act. 8; Ans. 2.
OPINION
Having considered the respective positions advanced by the Examiner
and Appellants in light of this appeal record, we affirm the Examiner’s
rejections for the reasons set forth in the Answer to the Appeal Brief and
Final Office Action, which we adopt as our own. We highlight and address
specific findings and arguments below for emphasis.
Rejection 1
Appellants argue claims 1,9, 10, 13, 18, 21, 22, 37, and 38 as a group.
App. Br. 4. We select claim 1 as representative and the remaining claims
subject to this rejection stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(l)(iv).
The Examiner determines that the combination of Hundorf, Noda,
Zenker, Zhao, and Hanao suggests an absorbent core satisfying all of the
limitations of claim 1 and would have rendered claim 1 obvious. Final Act.
2-7.
The Examiner finds that Hundorf teaches or suggests the majority of
the limitations of claim 1, but that the reference does not teach the specific
basis weight at which the adhesive is deposited. Final Act. 2-4 (citing
Hundorf, Abstract, || 28, 29, 70, 93, 97, 98, Figs. 1, 4). The Examiner,
however, relies on Noda for teaching or suggesting this missing limitation.
Id. at 4. In particular, the Examiner finds that Noda teaches an absorbent
article comprising an adhesive which is applied in a linear pattern intended
for adhering sheets of the article together and that the basis weight of the
4
Appeal 2016-008725
Application 12/970,037
adhesive is preferably from 3 g/m2 to 10 g/m2. Id. at 4 (citing Noda,
Abstract, || 198, 199).
Based on the above findings the Examiner concludes that:
It would have been obvious to one of ordinary skill in the art at
the time the invention was made to form the absorbent article of
Hundorf, and applying the first auxiliary adhesive at a basis
weight of between 3 g/m2 to 10 g/m2, as taught by Noda,
motivated by the desire to form a conventional absorbent article
using an amount of adhesive known in the art as being
predictably suitable for adhering layers of absorbent articles
together using a linear pattern.
Final Act. 4.
Appellants argue that the Examiner’s rejection should be reversed
because the prior art does not teach all of the claimed features of claim 1.
App. Br. 3; Reply Br. 1. In particular, Appellants contend that the basis
weight Noda discloses applies to hot melt adhesives and the Examiner has
not “established that Noda’s disclosed basis weight in paragraph [0199] is
applicable only to the first auxiliary adhesive in claim 1.” App. Br. 5.
Appellants also contend that the Examiner has not established by a
preponderance of the evidence that the claimed invention is obvious over the
combination of Hundorf, Noda, Zenker, Zhao, and Hanao. Id. at 5—6; see
also Reply Br. 2.
Appellants’ arguments are not persuasive of reversible error in the
Examiner’s rejection. On the record before us, a preponderance of the
evidence and sound technical reasoning support the Examiner’s analysis and
determination that the combination of Hundorf, Noda, Zenker, Zhao, and
Hanao suggests all of the limitations of claim 1, including the claimed basis
weight of the first auxiliary adhesive, and would have rendered the claim
obvious. Hundorf, Abstract, || 28, 29, 63, 70, 93, 97, 98, 112, 116, 127,
5
Appeal 2016-008725
Application 12/970,037
Figs. 1, 4; Noda, Abstract, H 198, 199; Zenker, Abstract, col. 11,11. 45—56;
Zhao, Abstract, 1 50; Hanao, Abstract, H 65, 68, 69.
As the Examiner finds (Ans. 3) and contrary to what Appellants
argue, although Noda teaches multiple applications for hot melt adhesives,
the basis weight Noda discloses is drawn to a single application of the
adhesive to the “3-1-4. Connecting Portion” of the absorbent article. Noda
1198.
As the Examiner further finds (Ans. 3), Noda teaches that the hot melt
adhesive (which corresponds to the claimed first auxiliary adhesive) is used
to the connect top sheet portion 2 (which corresponds to the claimed cover
layer and the cover layer 70 of Hundorf) and the absorbent body portion 4
(which corresponds to the claimed absorbent layer and the absorbent
polymer material/thermoplastic composition 66 and 68 of Hundorf),
resulting in a structure that corresponds to Appellants’ claimed structure.
Noda 1198. Noda also explicitly teaches that the basis weight of adhesive
“is preferably 1 g/m2 to 30 g/m2, more preferably 3 g/m2 to 10 g/m2,” which
encompasses/overlaps the claimed range of “4 g/m2 to 11 g/m2.” Id. 1199.
Appellants’ arguments reveal no reversible error in the Examiner’s
analysis and factual findings in this regard.
Moreover, the Examiner provides a reasonable basis and identifies a
preponderance of the evidence in the record to evince why one of ordinary
skill would have combined the teachings of the references to arrive at
Appellants’ claimed invention. Ans. 3 (explaining that one of ordinary skill
in the art would have had reason to modify Hundorf’s absorbent article to
incorporate Noda’s teaching’s regarding applying the first auxiliary adhesive
at a basis weight of between 3 g/m2 to 10 g/m2 in order to “form a
6
Appeal 2016-008725
Application 12/970,037
conventional absorbent article using an amount of adhesive known in the art
as being predictably suitable for adhering layers of absorbent articles
together”). See also KSR Inti Co. v. Teleflex, Inc., 550 U.S. 398, 420 (2007)
(explaining that any need or problem known in the art can provide a reason
for combining the elements in the manner claimed).
Appellants fail to direct us to sufficient evidence or provide an
adequate technical explanation to establish why the Examiner’s articulated
reasoning for combining the teachings of the prior art to arrive at the claimed
invention lacks a rational underpinning or is otherwise based on some other
reversible error.
Appellants’ assertions that the “Office has not established by a
preponderance of the evidence that the claimed invention is obvious over the
combination of Hundorf, Noda, Zenker, Zhao, and Hanao” and the “Office
has failed to establish a prima facie case of obviousness” (App. Br. 5, 6) are
not persuasive of reversible error because they are conclusory and
Appellants do not provide an adequate technical explanation or direct us to
sufficient evidence in the record to support them. Attorney argument is not
evidence. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
Accordingly, we affirm the Examiner’s rejection of claims 1—3, 5, 7—
9, and 13 under 35 U.S.C. § 103(a) as obvious over the combination of
Hundorf, Noda, Zenker, Zhao, and Hanao.
Rejections 2 and 3
Appellants do not present any additional substantive arguments in
response to the Examiner’s Rejections 2 and 3, stated above. Rather,
Appellants rely on the same arguments presented above in response to the
7
Appeal 2016-008725
Application 12/970,037
Examiner’s Rejection 1 regarding claim 1 and the combination of Hundorf,
Noda, Zenker, Zhao, and Hanao. See App. Br. 5, 6.
Accordingly, based on the findings and technical reasoning provided
by the Examiner and for the same reasons discussed above for affirming
Rejection 1, we affirm the Examiner’s Rejections 2 and 3.
DECISION/ORDER
The Examiner’s rejections of claims 1—3, 5, and 7—14 are affirmed.
It is ordered that the Examiner’s decision 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).
AFFIRMED
8