10837133 (B.P.A.I. Sep. 20, 2010)

Ex Parte Dibb et al

Board of Patent Appeals and InterferencesSep 20, 2010

10837133 (B.P.A.I. Sep. 20, 2010)

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. 10/837,133 04/30/2004 Karyn Clare Dibb 20196 2325 23556 7590 09/21/2010 KIMBERLY-CLARK WORLDWIDE, INC. Tara Pohlkotte 2300 Winchester Rd. NEENAH, WI 54956 EXAMINER HAND, MELANIE JO ART UNIT PAPER NUMBER 3761 MAIL DATE DELIVERY MODE 09/21/2010 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 KARYN CLARE DIBB, DAVID CHARLES POTTS, JACK NELSON LINDON, and ALICE Y. ROMANS-HESS ____________ Appeal 2009-011846 Application 10/837,133 Technology Center 3700 ____________ Before JOHN C. KERINS, MICHAEL W. O’NEILL, and FRED A. SILVERBERG, Administrative Patent Judges. O’NEILL, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal No. 2009-011846 Application No. 10/837,133 2 STATEMENT OF THE CASE Karyn Clare Dibb et al. (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 3, 5-8, 10, 12, 142 -17, 19-22, 24, and 26 under 35 U.S.C. § 102(b) as anticipated by Ouchi (JP 06- 090978, publ. Apr. 5, 1994), claims 4 and 25 under 35 U.S.C. § 103(a) as being unpatentable over Ouchi in view of Kim (KEPA199300002270, publ. circa 1993), claim 11 under 35 U.S.C. § 103(a) as being unpatentable over Ouchi in view of Magnusson (US 6,610,898 B1, issued Aug. 26, 2003), claims 13, 18, and 42 under 35 U.S.C. § 103(a) as being unpatentable over Ouchi in view of Wildi (US 3,625,827, issued Dec. 7, 1971), claim 23 Ouchi in view of Hayford (US 3,585,998, issued Jun. 22, 1971), claims 41 and 43 under 35 U.S.C. § 103(a) as being unpatentable over Ouchi in view of Potts (US 6,350,711 B1, issued Feb. 26, 2002). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. The Invention According to Appellants, it is often difficult to provide an absorbent material that will efficiently absorb a wide variety of fluids. As such, various treatments for improving the absorbency, fluid distribution and fluid retention of absorbent material and articles have been developed. Highly viscous fluids are often difficult to absorb. Menses is a viscoelastic fluid that contains mucin, a large linear glycoprotein. Spec. 1. Appellants’ Specification also explains that enzymes are known to break-up or cleave proteins such as those found in mucin. Enzymes can 2 Claim 14 is dependent upon claim 13, which has been rejected as obvious. Further prosecution before the Examiner should correct this error. This error has no bearing on the disposition of the appeal before us. Appeal No. 2009-011846 Application No. 10/837,133 3 cause skin sensitization. Therefore, placing enzymes directly on an absorbent article may make the article unsuitable for some users due to sensitization caused by the enzymes. Spec. 2. The invention on appeal relates to absorbent personal care articles containing a treated substrate. The treated substrate comprises a treating agent that comprises a linked enzyme. Appellants posit that a linked enzyme reduces sensitization to the skin or mucous membranes if the linked enzyme migrates to the user’s body. Spec. 3. Appellants’ Specification lexicographically defines the term “linked enzyme” as an enzyme “which is chemically bonded by covalent or ionic bonding to a carrier material which is soluble or dispersible in a solution.” Spec. 4, para [19]. The enzyme used in Appellants’ embodiments is either a protease or a glycosidase or a mixture of the two. The enzyme is linked to a carrier material. The carrier material is a polymer that is soluble or dispersible in water. Polymers that are disclosed as being suitable for use as the carrier material include: polyacrylic acid, polyvinylpyrrolidon, polyalkylene oxide, such as polyethylene glycol, polyvinyl alcohol, maleic anhydride polymers and copolymers such as acrylamide-maleic acid hydrogels or ethylene maleic anhydride coploymers. Spec. 10. Claim 3, reproduced below, is illustrative of the subject matter on appeal. 3. An absorbent personal care article comprising a baffle layer, an absorbent layer and a body side liner layer, wherein the absorbent layer is positioned between the baffle layer and the body side liner layer, and at least one of the absorbent layer or the body side liner layer comprises a Appeal No. 2009-011846 Application No. 10/837,133 4 treating agent applied thereto, wherein the treating agent comprises a linked enzyme, said linked enzyme comprises an enzyme chemically linked to a carrier material and said carrier material comprises a material which is soluble or dispersible in a solution. The Rejections The Examiner posits that Ouchi’s absorbent layer 6-2 comprises a treating agent 6-1, wherein the treating agent comprises a linked enzyme. The Examiner considers the linked enzyme to be cellulase that is chemically linked to a carrier material, cellulose fluff pulp, “via covalent bonds formed during the action of the enzyme on the carrier material.” Ans. 3-4. Contentions Appellants contend that the Examiner erred in finding that the enzyme within Ouchi is a linked enzyme as defined by their Specification. In particular, Appellants state that the Examiner erred in finding Ouchi’s enzyme is linked via 3 – and 5 – dinitrosalicylic acid to a carrier that is cellulose. Appellants state that the reference to dinitrosalicylic acid is for determining whether an enzyme has “filter paper decomposition activity” and not to preparing a linked enzyme. Appellants argue that the working example of Ouchi disclosed in paragraph 28 discloses the pulp treated with an enzyme and fails to disclose that the enzyme is linked. App. Br. 5. OPINION A determination of anticipation or obviousness begins with claim construction, followed by a comparison of the construed claim to the prior art. Key Pharm. v. Hercon Labs. Corp., 161 F.3d 709, 714 (Fed. Cir. 1998). Appeal No. 2009-011846 Application No. 10/837,133 5 When claim terminology is construed in the United States Patent and Trademark Office, claims are to be given their broadest reasonable interpretation consistent with the specification, reading claim language in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). In construing the term “linked enzyme” the Specification provides a lexicographical definition, viz., an enzyme covalently or ionically bonded to a carrier material. With the above in mind, we review the Examiner’s rejection and Appellants’ contentions. We agree with Appellants that Ouchi’s paragraph 15 does not support the Examiner’s finding that Ouchi teaches a “linked enzyme” as the term should be properly construed in light of the Specification. The dinitrosalicylic acid is being used to determine if an enzyme has “filter paper decomposition activity.” There is no disclosure that this acid is linked to the enzyme. Further, the Examiner has not provided sufficient evidence that the disclosed embodiment of Ouchi, where the carrier is considered to be cellulose and the enzyme is disclosed as cellulase, that the cellulase is linked to the cellulose according to Appellants’ definition of “linked enzyme” provided in the Specification (i.e., the enzyme, cellulase, is covalently or ionically bonded to the carrier material, cellulose). The Examiner does not rely on Kim, Hayford, Wildi, Potts, or Magnusson to remedy the above deficiency within Ouchi. Appeal No. 2009-011846 Application No. 10/837,133 6 DECISION The Examiner’s decision to reject claims 3-8, 10-26, and 41-43 is reversed. REVERSED Klh KIMBERLY-CLARK WORLDWIDE, INC. TARA POHLKOTTE 2300 WINCHESTER RD. NEENAH, WI 54956