Ex Parte Haskett et al

Board of Patent Appeals and Interferences

Jun 21, 2012

11045587 (B.P.A.I. Jun. 21, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/045,587 01/28/2005 Thomas E. Haskett 60482US002 6589
7590 06/21/2012
Attention: David B. Patchett, Esq.
Office of Intellectual Property Counsel
3M Innovative Properties Company
P.O. Box 33427
St. Paul, MN 55133-3427
EXAMINER
SIMONE, CATHERINE A
ART UNIT PAPER NUMBER
1783
MAIL DATE DELIVERY MODE
06/21/2012 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 THOMAS E. HASKETT,
AMY M. KUNZ, and JILL R. MUNRO
__________

Appeal 2011-000959
Application 11/045,587
Technology Center 1700
____________

Before ADRIENE LEPIANE HANLON, KAREN M. HASTINGS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 the final rejection of claims
1, 3-12, 14-16, and 21. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
We AFFIRM.
Appellants’ invention is said to be directed to a cleaning wipe for
removing debris from surfaces wherein the working surface (24) of the wipe
has first region (30), a second region (32) and a third region (34) having
different degrees of loftiness and height (Spec. 3:23-28).
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Claim 1 is illustrative:
1. A cleaning wipe useful as a wet wipe for picking up diverse debris,
such as hair, the cleaning wipe comprising:

a single layer of nonwoven web comprising at least a first region
having a first degree of loftiness and a first height, a second region having a
second degree of loftiness and a second height, and a third region having a
third degree of loftiness and a third height, wherein:

first degree of loftiness > second degree of loftiness > third degree of
loftiness, and

first height > second height > third height.

Appellants appeal the following rejections:
1. Claims 1, 3-12, and 21 are rejected under 35 U.S.C. § 102(b) as being
unpatentable over Pelz1 (EP 1 310 226 as translated, issued May 14,
2003).
2. Claims 14 and 15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Pelz in view of Gerhartl (EP 0 045 043 A1, issued
Jan. 2, 1991).
3. Claim 16 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Mangold (US 7,007,801 B2, patented Mar. 7, 2006) in view of
Pelz.

1 We rely on the Schreiber translation of Pelz included with the Answer.
Appellants argue that the full translation of Pelz is being provided for the
first time with the Answer and the rejections based upon the full translation
should be designated as new grounds of rejection (Reply Br. 2-3). However,
Appellants have not availed themselves of the proper recourse to address
such an issue: a petition to the Director to reopen prosecution.
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4. Claims 1, 3-12, 14-16, and 21 are provisionally rejected under the
judicially created doctrine of obviousness-type double patenting over
claims 1-21 of copending application 11/362,5492.

Rejections (1) to (3)
With regard to rejections (1) and (3), Appellants’ arguments focus on
the subject matter of claims 1, 16, and 21 (App. Br. 7-10). We note that
Appellants focus their arguments on the teachings of Pelz only and do not
address the Examiner’s findings or conclusions of the obviousness rejections
(2) and (3). Because the same features of claims 1, 16, and 21 are argued,
we select claim 1 as representative. Appellants do not separately argue
claims 14 and 15 under rejection (2).

ISSUE
Did the Examiner reversibly in err in finding that Pelz teaches a
cleaning wipe having a first, second and third region, wherein the first
region height and loftiness is greater than the second region height and
loftiness which is greater than the third region height and loftiness as
required by claim 1? We decide this issue in the negative.

FINDINGS OF FACT AND ANALYSES
The Examiner finds that Pelz teaches a cleaning wipe having a first
region (1), second region (2) and third region (3) as shown in Pelz’s Figure 1
that meet the claim requirement that the first region height and degree of

2 Application 11/362,549 has matured into US Patent 7,700,178 B2 issued
April 20, 2010, before the mailing of the Examiner’s Answer on June 9,
2010.
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loftiness is greater than the second region height and degree of loftiness,
which is greater than the third region height and degree of loftiness (Ans. 4-
5).
Appellants argue that Pelz’s fine grooves 3 are used to provide a
uniform firmness, strength, or absorption to the wipe (App. Br. 8; Reply Br.
3). Appellants contend that providing a uniform firmness or absorption
means that it is impossible to conclude that Pelz’s region 3 have a lesser
height or lesser degree of loftiness than a remainder of the lowered
intermediate region 2 (App. Br. 9; Reply Br. 3). Appellants contend that one
skilled in the art would understand the lowered region 2 having effectively a
uniform height. Id. Appellants further contend that ribs 1 (i.e.,
corresponding to the first region) undergo further solidification which would
have most likely lowered the degree of loftiness of the ribs 1 below the
degree of loftiness of regions 2 and 3 (App. Br. 8).
The Examiner responds that the variation in height produced by
forming grooves 3 and ribs 1 in Pelz’s wipe would have inherently resulted
in a wipe where the grooves 3 have a height and degree of loftiness which
are less than the height and degree of loftiness of areas 2, which, in turn, has
a height and a degree of loftiness less than the ribs 1 (Ans. 9-12).
Having fully considered Appellants’ arguments and the Examiners’
findings, we find that the preponderance of the evidence favors the
Examiner’s finding of lack of novelty and conclusion of obviousness. The
Examiner’s reasoning that the undulated or grooved surface produces areas
of higher compression and lower loftiness and height is reasonable and
supported by Pelz’s disclosure. Pelz plainly shows in Figures 1 and 6, for
example, a wipe having a surface with peaks and valleys formed by a water
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needling process (Pelz translation para. 12). It is reasonable to expect that a
more compressed area of the wipe surface (e.g. the valleys) would have less
height and loftiness than a neighboring surface area of the wipe that not as
compressed (e.g., the peaks).
Though Appellants are correct that Pelz teaches treating the entire
wipe surface to form the grooves 3 prior to forming ribs 1, Appellants have
not provided any evidence that the surface compression provided in grooves
3 (e.g., valleys) and the peaks in area 2 formed by the grooving process
would have the same loftiness and height. Appellants argue that Pelz’s
paragraph 14 disclosure of a wipe with a uniform absorption teaches that the
openness or loftiness of the wipe must be the same throughout (Reply Br. 3).
However, the Appellants have not directed us to any credible evidence
demonstrating that uniform absorption does not permit local variations in
loftiness or height in the surface layer of Pelz.
Moreover, we understand Pelz’s paragraph 14 disclosure to teach that
in the aggregate the result of a water needling process is a uniformly firm or
absorptive wipe, but with local variations in the height and loftiness of the
material in grooves 3, areas 2 and ribs 1 as found by the Examiner (Ans. 9-
12). In other words, Pelz’s paragraph 14 states that uniform absorption is
achieved because “the fine grooves configured through water needling is
only limited to relatively thin surface layers and the fibers in the core layers
of the [article] are available in a loose composite.” Thus, we understand that
the core areas of the article (rather than the thin water needled surface layer)
is responsible, in large part, for the uniform absorption of the article.
If we use Appellants’ disclosed convention for measuring height from
the midpoint of the wipe or from the second side of the wipe (Spec. 8:1-7),
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the grooves 3 would necessarily have a lower height than the peaks in area 2
or ribs 1 as measured from the midpoint or opposite side of the sheet. As the
Examiner finds, Pelz teaches that the grooves 3 have a depth (or height),
which means that areas 2 formed with peaks by the grooving process also
are higher than the bottoms of the grooves 3 (Ans. 9-10).
Appellants’ argument that the solidification of the ribs discussed in
paragraph 13 of Pelz affects their openness or loftiness is without persuasive
merit. The full, Schreiber translation of Pelz states that the fine grooves 3
act in concert with ribs 1 to provide additional reinforcement (Pelz, para.
[0013]). We do not understand Pelz as teaching the ribs 1 are further
densified to affect the openness or loftiness of the ribs 1 as argued by
Appellants.
Appellants’ argument that the high pressure second water needling
process would destroy the grooves 3 (Reply Br. 3) is contradicted by Pelz.
Pelz teaches at paragraph 12 that the fine grooves remain after the second
water needling process that forms ribs 1.
For these reasons and on this record, we affirm the Examiner’s
rejections (1) to (3).

Rejection (4): Provisional Obviousness-type Double Patenting
Application 11/362,549 has matured into US Patent 7,700,178 B2
issued April 20, 2010. The Examiner’s rejection indicates that the pending
claims of this application are rejected over claims 1-21 of application
11/362,549 (Ans. 4). However, the issued patent contains only 12 claims.
Appellants do not specifically challenge the Examiner’s determination
that the pending claims are an obvious variant of the claims in Application
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11/362,549 (App. Br. 7). Nonetheless, it is unclear on this record whether
an obviousness-type double patenting rejection is still proper. Therefore, we
decline to reach the rejection. Ex parte Moncla, 95 USPQ2d 1884 (BPAI
2010).

DECISION
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).
ORDER
AFFIRMED

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