Ex Parte Chen et al

Board of Patent Appeals and Interferences

Jun 12, 2012

10745327 - (D) (B.P.A.I. Jun. 12, 2012)

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.
10/745,327 12/23/2003 Fung-jou Chen KCX-823 (19258) 7568
22827 7590 06/12/2012
DORITY & MANNING, P.A.
POST OFFICE BOX 1449
GREENVILLE, SC 29602-1449
EXAMINER
CHOI, PETER Y
ART UNIT PAPER NUMBER
1786
MAIL DATE DELIVERY MODE
06/12/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte FUNG-JUO CHEN
and JEFFREY DEAN LINDSAY
________________

Appeal 2010-008858
Application 10/745,327
Technology Center 1700
________________

Before CATHERINE Q. TIMM, ROMULO H. DELMENDO, and
GEORGE C. BEST, Administrative Patent Judges.

BEST, Administrative Patent Judge.

DECISION ON APPEAL
The Examiner finally rejected claims 1-3, 5, 6, 8, 11, 13-19, 21-25,
38-41, and 43-57 of Application 10/745,327 as obvious under 35 U.S.C.
§ 103(a). Appellants seek reversal pursuant to 35 U.S.C. § 134(a). We have
jurisdiction under 35 U.S.C. § 6(b).
For the reasons set forth below, we AFFIRM.
Appeal 2010-008858
Application 10/745,327

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Background
The ’327 application is directed to disposable scrubbing products.
Spec. 1. Prior art scrubbing products typically comprise an abrasive scrub
pad backed with an absorbent sponge material. Id. Appellants have
developed a disposable scrub pad that is a multilayer product comprising an
abrasive layer and an absorbent fibrous layer. Id. at 2. The abrasive layer can
be comprised of a meltblown web of synthetic fibers such as a polyethylene.
Id. at 2-3. The abrasive layer is bonded to an absorbent layer which may
comprise an uncreped through-air dried tissue web that is a mixture of
synthetic and natural fibers. Id. at 3. The two layers are bonded together
using any of a number of heating processes that cause the meltspun abrasive
web to thermally bond to a portion of the synthetic fibers in the absorbent
tissue web. Id. at 4.
Rejections
1) The Examiner rejected claims 1-3, 5, 8, 11, 14-19, 21-25, 38-
40, and 43-57 as obvious under 35 U.S.C. § 103(a) over Canadian Patent
2,524,671 A1 (“Trinh,” issued Dec. 6, 2005) in view of U.S. Patent No.
4,885,202 (“Lloyd,” issued Dec. 5, 1989), further in view of U.S. Patent No.
4,883,003 (“Win,” issued May 23, 1989), in still further view of U.S. Patent
No. 5,429,854 (“Currie,” issued July 4, 1995).
2) The Examiner rejected claims 6, 13, and 41 as obvious under 35
U.S.C. § 103(a) over the combination of Trinh, Lloyd, Win, and Currie, in
further view of published U.S. Application 2003/0176136 (“Wadsworth,”
Sept. 18, 2003).
Appeal 2010-008858
Application 10/745,327

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Issue
Appellants assert that the Examiner erred twice and that these alleged
errors should result in reversal of the rejections of every claim remaining in
the ’327 application. First, Appellants contend that the Examiner erred by
combining the teachings of Trinh and Lloyd in the manner set forth in the
Final Office Action. App. Br. 5-7. Second, Appellants argue that the
Examiner erred by combining the teachings of Trinh, Lloyd, and Currie in
the manner set forth in the Final Office Action. App. Br. 7-9.
Discussion
Obviousness is a legal conclusion based upon underlying factual
determinations. In re Kumar, 418 F.3d 1361, 1365 (Fed. Cir. 2005). These
underlying factual determinations include: (1) the level of ordinary skill in
the art, (2) the scope and content of the prior art, (3) the differences between
the claimed invention and the prior art, and (4) any objective indicia of
nonobviousness that may be present. Graham v. John Deere Co., 383 U.S. 1,
17-18 (1966).
In this case, Appellants do not claim to have identified any errors
made by the Examiner in any of the underlying factual determinations
regarding the teachings of the references. Rather, Appellants have only
challenged the existence of a reason to combine the particular references
selected by the Examiner. App. Br. 5-9. Specifically, Appellants challenge
the reasons given by the Examiner to modify the teachings of Trinh with the
teachings of Lloyd, App. Br. 5, and to modify the combined teachings of
Trinh and Lloyd with the teachings of Currie, App. Br. 7.
“[M]ere identification in the prior art of each element is insufficient to
defeat the patentability of the combined subject matter as a whole.” In re
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Application 10/745,327

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Kahn, 441 F.3d 977, 986 (Fed. Cir. 2006). “‘[T]here must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.’” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
418 (2007)(quoting Kahn, 441 F.3d at 988). While the Supreme Court has
warned against “[r]igid preventative rules that deny factfinders recourse to
common sense,” the “factfinder should be aware . . . of the distortion caused
by hindsight bias and must be cautious of arguments reliant upon ex post
reasoning.” KSR, 550 U.S. at 421.
Our review of the record in this case reveals that the Examiner did
provide an adequate reason to combine the teachings of each of the asserted
references challenged by Appellants.
First, the Examiner provided an adequate reason to combine the
teachings of Trinh and Lloyd. The Examiner explained that the Lloyd was
not cited for the reason argued by Appellants in their brief. 1 Ans. 19-21.
Rather, Lloyd was cited for its specific description of the use of an uncreped
tissue layer in the wipe described in Trinh. Id. This is consistent with the
argument the Examiner made in stating the rejection. Final Office Action 3
(“FOA,” Aug. 14, 2009); Ans. 4-5. As the Examiner further explained, the
motivation to combine the references comes from the fact that uncreped
tissue web is known to be suitable for use in wipes to absorb liquid while
maintaining structural integrity and wet strength. Id.
Second, the Examiner also provided an adequate reason to combine
the teachings of Curry with the teachings of Trinh and Lloyd. Curry
describes abrasive cleaning pads made from a variety of polymers. As the
Examiner explained, the person of ordinary skill in the art would have

1 Appellants did not file a Reply brief to contest this.
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Application 10/745,327

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looked to Curry to determine the particular types and properties of the
polymers that could be used in this application. FOA 5, Ans. 6-7. We believe
that this is an adequate reason for a person of ordinary skill in the art to look
to Currie.
In sum, we have not found that the Examiner erred in determining that
there was a reason to combine the asserted references. As we have noted
above, Appellants did not allege that the Examiner made any errors in
determining the four Graham factors.
We conclude, as did the Examiner, that the claimed invention would
have been obvious in view of the asserted prior art. Our review of the record
shows that each of the elements taught in these references is used in the
manner and for the purpose taught in the reference from which it comes. As
the Supreme Court has stated, “[t]he combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.” KSR, 550 U.S. at 416. This is the case here.
Conclusion
For the foregoing reasons, we sustain the Examiner’s rejections of
claims 1-3, 5, 8, 11, 14-19, 21-25, 38-40, and 43-57 as obvious under 35
U.S.C. § 103(a).

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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