Ex Parte Donovan et al

Board of Patent Appeals and Interferences

Aug 29, 2012

11903460 (B.P.A.I. Aug. 29, 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.
11/903,460 09/21/2007 James A. Donovan D447.12-0007 1518
164 7590 08/29/2012
KINNEY & LANGE, P.A.
THE KINNEY & LANGE BUILDING
312 SOUTH THIRD STREET
MINNEAPOLIS, MN 55415-1002
EXAMINER
KIDWELL, MICHELE M
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
08/29/2012 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 JAMES A. DONOVAN and TOBI W. FERGUSON
__________

Appeal 2011-011473
Application 11/903,460
Technology Center 3700
__________

Before ERIC GRIMES, JEFFREY N. FREDMAN, and
JACQUELINE WRIGHT BONILLA, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a heatable
personal hygiene device. The Examiner has rejected the claims as
anticipated and obvious. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm.
STATEMENT OF THE CASE
The Specification discloses a package holding “personal hygiene
wipes. Also inside the package is a system for generating warming heat.”
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(Spec. 4:8-10.) The package includes “a heat sink, positioned proximate the
heating component or system, for absorbing the initially generated heat and
allowing that heat to be controlled as it passes to the wipe or wipes” (id. at
4:10-12). A preferred “heat sink is a cloth, preferably wet, with a most
preferred heat sink being a nonwoven material such as spunlace. Spunlace is
made from synthetic fibers such as polypropylene fibers.” (Id. at 4:23-25.)
Claims 21-29 are on appeal. Claim 21, the only independent claim,
reads as follows:
21. A heatable personal hygiene wipe device, comprising:
an outer package having a sealed opening for removing contents and
an inner surface;
a plurality of hygiene wipes contained in the outer package in position
to be removed upon opening the sealed opening;
a heat sink element in physical contact with the plurality of hygiene
wipes;
an actuatable heat source in the outer package in physical contact with
the heat sink element, the heat source including an inner pouch and an outer
pouch;
the inner pouch having an actuation agent therein and a seal keeping
the actuation agent in the inner pouch; and
the outer pouch having heat generating materials therein, the heat
generating materials being adapted to generate heat upon activation by the
actuation agent upon breaking the seal keeping the actuation agent in the
inner pouch;
whereby the heat sink element between the outer pouch and the
plurality of hygiene wipes in the outer package receives heat generated by
the heat source upon actuation to maintained [sic] a uniform dispersion of
the generated heat by absorbing the generated heat and controlling the heat
as the heat passes to the wipes without allowing the wipes to be exposed to
excessive heat.

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Issue
The Examiner has rejected claims 21-24 and 27-29 under 35 U.S.C.
§ 102(b) as anticipated by Saric.
1
The Examiner has also rejected claims 25
and 26 under 35 U.S.C. § 103(a) as obvious in view of Saric and Joseph.
2

We will consider the rejections together since Appellants have waived any
argument based on Joseph (Appeal Br. 6).
The Examiner finds that “Saric discloses a device comprising a sealed
outer package (abstract) containing a plurality of wipes [0008] and having an
actuatable heat source” (Answer 4). The Examiner finds that Saric’s heat
source includes “an inner pouch (20) having an actuation agent (19) therein
and outer pouch (13) having heat generating materials (25,22)” (id.). The
Examiner finds that Saric’s device further comprises a “heat sink element
(243) … which is positioned directly between the wipes (6) and the heat
generating materials” (id.).
Appellants argue that Saric does not disclose a heat sink element
positioned between the hygiene wipes and the heat generating materials
because Saric’s “heat generating materials are first agent 22 and second
agent 19,” and element 12 is on the other side of wipes 6 from both elements
19 and 22 (Appeal Br. 5); thus, “[e]lement 12 is not between the wipes and
either first or second agents 22 and 19” (id.).
The issue presented is: Does the evidence of record support the
Examiner’s finding that Saric discloses a hygiene wipe device comprising a

1
Saric et al., US 2005/0224388 A1, published Oct. 13, 2005.
2
Joseph et al., US 6,484,514 B1, issued Nov. 26, 2002.
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heat sink element that is in physical contact both with wipes and with an
actuatable heat source, as recited in instant claim 21?
Findings of Fact
1. Saric discloses “a self-heating package for containing and heating a
product such as a pre-moistened wipe” (Saric 1, ¶ 0002).
2. Figure 1E of Saric is shown below:

Figure 1E discloses a section view of Saric’s package (id. at 2, ¶¶ 0018-
0019).
3. Saric discloses that the package “includes a first sealable envelope
or outer pouch (10) that holds a second sealable envelope or inner pouch
(13). The inner pouch (13) is adapted to hold … at least one pre-moistened
wipe (6)” (id. at 2, ¶ 0024).
4. Saric discloses that “first and second agents (22) and (19) form at
least a portion of heating elements (25) of the package” (id.).
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5. Saric discloses that “second agent (19) is … provided in a sealed
bag or solvent chamber (20).… The second agent (19) can be in the form of
a solvent adapted to react with the first agent (22) in an exothermic
reaction.” (Id. at 3, ¶ 0028.)
6. Saric discloses that the “outer pouch (10) can include a thermal
insulated layer (12)…. The thermal insulated layer (12) can define an inner
surface of the outer pouch (10).” (Id. at 2, ¶ 0025.)
7. Saric discloses that a “generally non-rupturable barrier web (243)
can extend between upper and lower ends of the package … defining the
inner pouch (13) on one side thereof, and having the first and second agent
regions … disposed on the other side, opposite the inner pouch (13)” (id. at
4, ¶ 0033).
8. Saric discloses that the “barrier web (243) can be formed of a
sidewall portion of … sealable envelope (13)” (id.).
9. The Examiner finds that element 243, not element 12, in Saric’s
package corresponds to the heat sink recited in claim 21 (Answer 4; Office
Action mailed Oct. 22, 2010, page 2).
Analysis
Claim 21 discloses a heatable personal hygiene wipe device that
comprises, among other things, an outer package containing a plurality of
hygiene wipes, an actuatable heat source, and a heat sink element in contact
with both the wipes and the heat source.
Saric discloses a self-heating pre-moistened wipes package that
comprises an outer pouch (10) and an inner pouch (13) that contains wipes.
Saric discloses that the outer pouch (10) also contains an actuatable heat
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source. Saric also discloses that the package contains a non-rupturable
barrier web (243) extending between the inner pouch (13) on one side of the
package and the actuatable heat source on the other side. Saric also
discloses that the barrier web (243) can be formed of a sidewall portion of
inner pouch 13. Thus, Saric discloses all of the elements of claim 21, with
Saric’s barrier web (243) corresponding to the claimed heat sink element.
Appellants argue that Saric does not include a heat sink positioned as
required by claim 21 because “[e]lement 12 is not between the wipes and
either first or second agents 22 and 19” (Appeal Br. 5).
The Examiner, however, finds that Saric’s barrier web 243, not
thermal insulated layer 12, corresponds to the heat sink element of claim 21.
Appellants have provided no persuasive evidence or technical reasoning to
show that Saric’s barrier web 243 would not function as a heat sink element,
and the Specification’s statement that “a most preferred heat sink [is] a
nonwoven material such as spunlace” (Spec. 4:23-24) supports the
Examiner’s position that a heat sink can be a barrier web. Appellants’
argument that element 12 is not disposed between the wipes and the
actuatable heating elements is not responsive to the Examiner’s reasoning.
We affirm the rejection of claim 21 as anticipated by Saric. Claims
22-24 and 27-29 have not been argued separately and therefore fall with
claim 21. 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner has also rejected claims 25 and 26 under 35 U.S.C.
§ 103(a) as obvious in view of Saric and Joseph. As noted above,
Appellants have waived any argument based on Joseph, so we also affirm
the rejection of claims 25 and 26.
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Conclusion of Law
The evidence of record supports the Examiner’s finding that Saric
discloses a hygiene wipe device comprising a heat sink element that is in
physical contact with both the wipes and an actuatable heat source, as recited
in instant claim 21.
SUMMARY
We affirm the rejection of claims 21-24 and 27-29 under 35 U.S.C.
§ 102(b) and the rejection of claims 25 and 26 under 35 U.S.C. § 103(a).
TIME PERIOD FOR RESPONSE
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

cdc