Ex Parte Griffin et al

Board of Patent Appeals and Interferences

Sep 14, 2010

10697465 (B.P.A.I. Sep. 14, 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.
10/697,465 10/30/2003 Rebecca Willey Griffin 18872 7960
23556 7590 09/15/2010
KIMBERLY-CLARK WORLDWIDE, INC.
Tara Pohlkotte
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
TORRES VELAZQUEZ, NORCA LIZ
ART UNIT PAPER NUMBER
1786
MAIL DATE DELIVERY MODE
09/15/2010 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 REBECCA WILLEY GRIFFIN
and JAMES ANTHONY RIGGS
______________

Appeal 2009-005358
Application 10/697,465
Technology Center 1700
_______________

Before CHARLES F. WARREN, TERRY J. OWENS, and
CATHERINE Q. TIMM, Administrative Patent Judges.

WARREN, Administrative Patent Judge.

DECISION ON APPEAL1
Applicants appeal to the Board from the decision of the Primary
Examiner finally rejecting claims 11-22 in the Office Action mailed
November 30, 2006. 35 U.S.C. §§ 6 and 134(a) (2002); 37 C.F.R.

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 2009-005358
Application 10/697,465
§ 41.31(a) (2007).
We affirm the decision of the Primary Examiner.
Claim 11 illustrates Appellants’ invention of a cross machine direction
extensible nonwoven web, and is representative of the claims on appeal:
11. A cross machine direction extensible nonwoven web consisting
essentially of continuous thermoplastic fibers and a plurality of thermal bond
points in a pattern, the continuous thermoplastic fibers having an average
diameter greater than about 10 microns, the nonwoven web having
substantially uniform basis weight, and wherein the force required to extend
the bonded nonwoven web 30 percent in the cross machine direction is less
than about 60 percent of the cross machine direction peak tensile force of the
bonded nonwoven web.
Appellants request review of the ground of rejection under 35 U.S.C.
§ 102(b) or, in the alternative, under 35 U.S.C. § 103(a) advanced on appeal
by the Examiner: claims 11-22 over Abuto (US 5,804,021).2 App. 3;3 Ans.
3.
Appellants argue the claims in the ground of rejection as a group. Br.
3-6. Thus, we decide this appeal based on claim 11. 37 C.F.R.
§ 41.37(c)(1)(vii) (2007).
Opinion
We cannot agree with Appellants’ position that the Examiner erred in
applying Abuto to claim 11 because of the claim limitation “[a] cross
machine direction extensible nonwoven web consisting essentially of

2 The Examiner cites Schmidt (US 2004/0121110 A1), Cartwright (US
2005/0079987 A1), and Adanur (Sabit Adanur, Wellington Sears Handbook
of Industrial Textiles 563 (Technomic Publishing Co. 1995)) to show known
physical properties and dimension conversions. Ans. 3. Appellants do not
dispute this use of the references.
3 We considered the Appeal Brief filed July 2, 2007.
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Application 10/697,465
continuous thermoplastic fibers.” Br. 4-5. According to Appellants, Abuto
would have “provide[d] for the extensibility to be increased because the
webs contain a plurality of slits through the nonwoven material” of the
nonwoven web facing layer made from continuous fibers, resulting in “at
least a substantial number of discontinuous fibers at the slits.” Br. 4
(original emphasis deleted). Appellants argue that the slits/cuts in Abuto’s
nonwoven facing layer is a post-processing structural change which excludes
the layer from claim 11 by reason of the transitional term “consisting
essentially of.” Br. 4-5. “[T]he inventive material consisting essentially of
continuous fibers does not include within the scope such a material having a
plurality of slits, because this would mean a fibrous nonwoven web having
many discontinuous fibers at the positions of the slits across the nonwoven
web.” Br. 4; see also Br. 5.
Appellants thus do not dispute that, as the Examiner finds, Abuto
teaches that the nonwoven web facing layer is formed from continuous
fibers that are thermally point bonded in a pattern with discontinuous slits
then formed in the web to provide extensibility in the cross machine
direction. Ans. 3-5, citing Abuto abstract, col. 7, ll. 25-44, col. 9, ll. 30-33,
col. 11, l. 64 to col. 12, l. 56, and Figs. 1 and 2. See also Abuto, e.g., col. 3,
ll. 53-64, and col. 7, l. 45 to col. 9, l. 47.
The Examiner submits that Appellants have the burden of showing
that Abuto’s slits will materially change the characteristics of the claimed
nonwoven web and thus are excluded by the transitional term “consisting
essentially of.” Ans. 5-6. The Examiner maintains that Abuto’s slits would
not materially change the characteristics of the claimed invention because
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Appeal 2009-005358
Application 10/697,465
Abuto teaches continuous fibers and claim 11 “does not define the length of
the claimed continuous fibers.” Ans. 6. The Examiner further argues that
Abuto’s slits are in the machine direction of the nonwoven web, “parallel to
the direction of the spunbonded filaments, therefore, the presence of such
slits will not affect the strength of the material in that direction and
accordingly, there will be no significant discontinuity in the fibers running in
that direction.” Ans. 6. Thus, “there is no material difference in the
structure claimed in the present invention and the material taught by”
Abuto.” Ans. 6
We agree with the Examiner that Appellants have the burden to
establish that Abuto’s slits in the nonwoven web facing layer formed from
continuous fibers would materially affect the basic and novel characteristics
of the claimed cross machine direction extensible nonwoven web consisting
essentially of continuous fibers. Appellants’ arguments do not establish that
the written description in the Specification describes additional structures or
modifications in the disclosed cross machine direction extensible nonwoven
web which would materially affect the basic and novel characteristics
thereof. See generally Briefs. See, e.g., In re Herz, 537 F.2d 549, 551-52
(CCPA 1976) (“[I]t is necessary and proper to determine whether [the]
specification reasonably supports a construction” that would exclude or
include particular ingredients.); In re De Lajarte, 337 F.2d 870, 873-74
(CCPA 1964); see also PPG Indus., Inc. v. Guardian Indus. Corp., 156 F.3d
1351, 1354-57 (Fed. Cir. 1998).
Indeed, we find in the Specification a definition of the term “fibers” as
referring to, among other things, “substantially continuous filaments,” and
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Appeal 2009-005358
Application 10/697,465
that the term “‘substantially continuous’ with respect to a filament or fiber
means a filament or fiber having a length much greater than its diameter, for
example having a length to diameter ratio in excess of about 15,000 to 1, and
desirably in excess of 50,000 to 1.” Spec. 5:5-9; see Br. 2, Summary of
Claimed Subject Matter. We find that the term “substantially continuous” as
defined does not provide a specific range for the length of the substantially
continuous fiber, and it is apparent that such fibers can be of different
lengths and result in the claimed nonwoven web. While claim 1 includes the
limitation that the continuous fibers have an average diameter greater than
about 10 microns, there is no basis in claim 1 or in the Specification
identified by Appellants on which to determine the length of a claimed
“continuous fiber” from a diameter range.
Thus, on this record, we further agree with the Examiner that
Appellants have not carried the burden of establishing that Abuto’s slits in a
nonwoven web formed from continuous fibers and having a plurality of
thermal bond points in a pattern would be excluded from claim 11 by the
transitional term “consisting essentially of.” Indeed, there is no basis in the
Specification on which to determine whether Abuto’s slits will result in
fibers that are not “continuous” as claimed. In this respect, the Examiner
finds that Abuto’s slits are parallel to the direction of the spunbonded fibers
and thus, would result in no significant discontinuity to the fibers when the
slits are formed.
Accordingly, based on our consideration of the totality of the record
before us, we have weighed the evidence of anticipation and of obviousness
found in Abuto with Appellants’ countervailing evidence of and argument
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Application 10/697,465
for non-anticipation and nonobviousness and conclude, by a preponderance
of the evidence and weight of argument, that the claimed invention
encompassed by appealed claims 11-22 would have been anticipated as a
matter of fact under 35 U.S.C. § 102(b), and would have been obvious as a
matter of law 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)(1)(iv).
AFFIRMED

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KIMBERLY-CLARK WORLDWIDE, INC.
TARA POHLKOTTE
2300 WINCHESTER RD.
NEENAH, WI 54956
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