Ex Parte DOHERTY-STAPP et al

Patent Trial and Appeal Board

Jul 24, 2018

14175190 (P.T.A.B. Jul. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/175,190 02/07/2014
27752 7590 07/26/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Stephanie Michelle DOHERTY-STAPP
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
13222 1208
EXAMINER
PIERCE, JEREMY R
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
07/26/2018 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 STEPAHNIE MICHELLE DOHERTY-STAPP,
DAVID JOHN HOYING, JUAN CARLOS FLORES-ESCRIBANO,
and DAVID JOHN PUNG
Appeal2017-009963
Application 14/175,190
Technology Center 1700
Before: TERRY J. OWENS, LINDA M. GAUDETTE, and
MONTE T. SQUIRE, Administrative Patent Judges.
SQUIRE, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-20, which constitute all the claims pending in this
application. 2 We have jurisdiction under 35 U.S.C. § 6(b).
1 In our Decision, we refer to the Specification filed February 7, 2014
("Spec."); Final Office Action dated November 4, 2016 ("Final Act.");
Advisory Action dated February 3, 2017 ("Adv. Act."); Appeal Brief filed
March 7, 2017 ("Appeal Br."); Examiner's Answer dated June 2, 2017
("Ans."); and Reply Brief filed July 20, 2017 ("Reply Brief').
2 Appellant is the Applicant, "The Procter & Gamble Company of
Cincinnati, Ohio" and also identified as the and real party in interest. See
Appeal Br. 3.
Appeal2017-009963
Application 14/175, 190
We AFFIRM.
The Claimed Invention
The invention relates to cleaning sheets, and more particularly to
substrates for cleaning sheets that may be pre-wetted prior to use. Spec. 1,
16, Abstract. Claim 1 is illustrative of the claimed subject matter on appeal
and is reproduced below from the Claims Appendix to the Appeal Brief
(Appeal Br. 14) (key disputed claim language italicized and bolded):
1. A cleaning sheet suitable for being pre-wetted, said
cleaning sheet comprising a first ply and a second ply joined
together in a face-to-face relationship to form a laminate, said
first ply comprising a floor contacting layer having a basis
weight of about 35 gsm to about 50 gsm, a cumulative volume
at 204 mm H20 of about 2 to about 2. 7 cubic millimeters per
mg of nonwoven material and said second ply comprising a
core layer for holding and releasing a cleaning liquid, said
second ply comprising a synthetic nonwoven and/or cellulosic
material.
The References
The Examiner relies on the following prior art references as evidence
in rejecting the claims on appeal:
Bouchette US 6,110,848
Gorley et al., US 2005/0133174 Al
(hereinafter "Gorley")
The Rejection
Aug. 29, 2000
June 23, 2005
On appeal, the Examiner maintains the following rejection:
Claims 1-20 rejected under 35 U.S.C. § 103 as being unpatentable
over Bouchette in view of Gorley. Ans. 2; see also Final Act. 2.
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Application 14/175, 190
OPINION
Having considered the respective positions advanced by the Examiner
and Appellant in light of this appeal record, we affirm the Examiner's
rejections based on the fact finding and reasoning set forth in the Answer,
Advisory Action, and Final Office Action, which we adopt as our own.
We highlight and address specific findings and arguments below for
emphasis.
Appellant argues claims 1-20 as a group. Appeal Br. 5. We select
claim 1 as representative and the remaining claims subject to this rejection
stand or fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner determines that the combination of Bouchette and
Gorley suggests a cleaning sheet satisfying all of the limitations of claim 1
and thus, concludes the combination would have rendered the claim obvious.
Ans. 2-3 (citing Bouchette Abstract, col. 10, 11. 36-37; Gorley Abstract
,r,r 20, 24 (Examples 3-6)).
The Examiner finds (Ans. 2) that Bouchette teaches a cleaning sheet
that can be used as a pre-moistened wet-wipe comprising (a) an outer
cleaning layer of synthetic fibers, which corresponds to the claimed "first
ply" and (b) an inner core layer of cellulosic fibers, which corresponds to the
claimed "second ply." Bouchette Abstract, col. 3, 11. 6-15, col. 4, 11. 14--16,
20-22, and col. 10, 11. 36-37.
The Examiner acknowledges that Bouchette does not teach the outer
cleaning layer having a basis weight of "about 35 gsm to about 50 gsm" and
a cumulative volume of "about 2 to about 2. 7 cubic millimeters per mg of
nonwoven material," but relies on Gorley for teaching or suggesting these
missing limitations. Ans. 2. In particular, the Examiner finds that Gorley
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Application 14/175, 190
teaches pre-moistened wet-wipes comprising at least one layer of a 100%
synthetic nonwoven web formed from "Avspun" synthetic fibers having a
basis weight in the range of about 30 to 50 gsm and that the cumulative
volume of such layer is an inherent property of the synthetic nonwoven
material. Id. at 2-3 (citing Gorley Abstract ,r,r 20, 24 (Examples 3-6)).
Based on the above findings regarding the teachings of the prior art,
the Examiner concludes that:
it would have been obvious to a person having ordinary skill in
the art at the time of filing the invention to provide the outer
cleaning layer disclosed by Bouchette with an A vspun
nonwoven fabric having the claimed basis weight and
cumulative volume properties, since Gorley teaches that such
nonwoven webs are suitable for use as a layer in a
pre-moistened wet-wipe, and because Bouchette suggests using
[a] spunbonded ... fabric in its outer layer.
Id. at 3.
Appellant argues that the Examiner's rejection should be reversed
because the rejection does not make out a prima facie case of obviousness.
Appeal Br. 5. Appellant contends that the rejection is contrary to the In re
Best decision because "[i]nherency may not be used in an obviousness
rejection" (Appeal Br. 6) and "[t]here is no such thing as a rejection under
103 inherency" (id. at 7). Appellant also contends that the Examiner does
not apply the proper legal standard for establishing inherency. Appeal Br.
10 ( arguing that "the instant rejection does not meet the 'necessarily'
standard required by MPEP 2112.IV and the underlying case law of Ex parte
Levy."). See also Reply Br. (second page).
We do not find Appellant's arguments persuasive of reversible error
in the Examiner's rejection. On the record before us, we find that a
preponderance of the evidence and sound technical reasoning support the
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Application 14/175, 190
Examiner's analysis and determination that the combination of Bouchette
and Gorley suggests a cleaning sheet satisfying all of the limitations of claim
1, and the Examiner's conclusion that the combination would have rendered
the claimed invention obvious. Bouchette, Abstract, col. 3, 11. 6-15, col. 4,
11. 14--16, 20-22, col. 10, 11. 36-37; see also Gorley Abstract ,r,r 20, 24, 139--
148 (Examples 3---6)).
We do not find Appellant's arguments regarding the In re Best
decision and the legal standard for showing inherency (Appeal Br. 6-7, 10)
persuasive of reversible error in the Examiner's rejection based on the fact-
finding and the well-stated reasoning provided by the Examiner at pages 2-3
and 5-7 of the Answer.
In particular, we determine that the Examiner has established by a
preponderance of the evidence that the claimed cumulative volume is an
inherent property of Gorley's synthetic nonwoven web. As the Examiner
finds (Ans. 2-3, 5-7), Gorley teaches that the prior art nonwoven webs are
(a) formed from the same materials as the claimed product, i.e., "Avspun"
synthetic fibers; (b) formed from a similar process as the claimed product,
i.e., a spunbonded configuration followed by a hydroentanglement
processing step resulting in a total fabric basis weight in the range of about
30 to 50 gsm; and ( c) produced for similar end use applications, i.e., for use
in a wet-wipe cleaning sheet. Gorley Abstract ,r,r 20, 24, 139--148
(Examples 3---6).
Thus, as the Examiner correctly determines (Ans. 6-7), the burden
shifted to Appellant to identify a difference between the prior art cleaning
sheet and the cleaning sheet of claim 1. See In re Spada, 911 F.2d 705, 708-
09 (Fed. Cir. 1990) ("[W]hen the PTO shows sound basis for believing that
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Application 14/175, 190
the products of the applicant and the prior art are the same, the applicant has
the burden of showing that they are not."); In re Best, 562 F.2d 1252, 1255
(CCPA 1977) ("Where, as here, the claimed and prior art products are
identical or substantially identical, or are produced by identical or
substantially identical processes, the PTO can require an applicant to prove
that the prior art products do not necessarily or inherently possess the
characteristics of his claimed product."); see also In re Kubin, 561 F.3d
1351, 1357 (Fed. Cir. 2009) ("Even ifno prior art of record explicitly
discusses the ... [limitation], [Appellants'] application itself instructs that
[the limitation] is not an additional requirement imposed by the claims on
the [claimed invention], but rather a property necessarily present in [the
claimed invention].").
Appellant, however, has not carried that burden. Appellant's
assertions that "[i]nherency may not be used in an obviousness rejection"
(Appeal Br. 6) and "[t]here is no such thing as a rejection under 103
inherency" (id. at 7) are conclusory, misstatements of the law and, without
more, insufficient to rebut or otherwise establish reversible error in the
Examiner's rejection. Attorney argument is not evidence. In re De Blauwe,
736 F.2d 699, 705 (Fed. Cir. 1984).
Appellant's assertions that (a) "the instant rejection does not meet the
'necessarily' standard required by MPEP 2112.IV and the underlying case
law of Ex parte Levy" (Appeal Br. 1 O); (b) the "Examiner has not shown that
Avspun fibers have remained the same for 15 years" (Reply Br. (third
page)); and ( c) the "Examiner has not shown that all A vspun fibers
necessarily produce a sheet with the claimed cumulative volume" (id. at
fourth page) are equally unpersuasive because they, too, are conclusory and
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Appellant does not provide an adequate explanation to support them. De
Blauwe, 736 F.2d at 705.
We, therefore, affirm the Examiner's rejection of claims 1-20 under
35 U.S.C. § 103 as obvious over the combination of Bouchette and Gorley.
DECISION/ORDER
The Examiner's rejection of claims 1-20 is 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
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