10950881 (B.P.A.I. Apr. 7, 2010)

Ex Parte Keck et al

Board of Patent Appeals and InterferencesApr 7, 2010

10950881 (B.P.A.I. Apr. 7, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte LAURA ELIZABETH KECK, EUGENIO GO VARONA, and ALAN EDWARD WRIGHT ____________ Appeal 2009-006894 Application 10/950,881 Technology Center 1700 ____________ Decided: April 7, 2010 ____________ Before BRADLEY R. GARRIS, PETER F. KRATZ, and MARK NAGUMO, Administrative Patent Judges. KRATZ, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal under 35 U.S.C. § 134 from the Examiner’s final rejection of claims 1-4 and 6-16. We have jurisdiction pursuant to 35 U.S.C. § 6. Appeal 2009-006894 Application 10/950,881 2 Appellants’ claimed invention is directed to a non-woven wiper comprising a creped and electret treated fibrous non-woven web material, wherein the non-woven web material includes thermoplastic polymer fibers selected from either polyolefin or polyester polymers. Claim 1 is illustrative and reproduced below: 1. A nonwoven wiper comprising at least one fibrous nonwoven web material, said nonwoven web material being a creped and electret treated nonwoven web material, wherein said fibers of said at least one fibrous nonwoven web material comprise a thermoplastic polymerr selected from the group consisting of polyolefins and polyesters. The Examiner relies on the following prior art references as evidence in rejecting the appealed claims: Chen 5,990,377 Nov. 23, 1999 Sayovitz US 6,835,264 B2 Dec. 28, 2004 Claims 1, 4, 6-12, and 16 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Chen. Claims 2, 3, and 13-15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Chen in view of Sayovitz. We reverse the stated rejections for reasons set forth in the Appeal Brief. Anticipation Rejection Appellants essentially argue in the Brief that the Examiner improperly takes varying pieces from different portions of Chen’s disclosure in assembling that which is arguably claimed, because the Examiner does not establish how Chen describes subject matter that any of the rejected claims Appeal 2009-006894 Application 10/950,881 3 read on based on the collection of subject matter the Examiner assembles from isolated selections taken from Chen (Br. 3-8; see independent claim 1). The principal issue before us is: Has the Examiner established that Chen describes a creped and electret treated non-woven wiper comprising a creped and electret treated non-woven web material that includes thermoplastic polymer fibers selected from either polyolefin or polyester polymers? We answer this question in the negative. In order for the Examiner to carry the burden to establish a prima facie case of anticipation, the Examiner must establish where each and every element of the claimed invention, arranged as required by the claim, is found in a single prior art reference, either expressly or under the principles of inherency. See generally In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). In other words, for the Appellants’ claimed invention to be anticipated, the reference must lead one of ordinary skill in the art to a product which falls within the scope of the claim “without any need for picking, choosing, and combining various disclosures not directly related to each other by the teachings of the cited reference.” In re Arkley, 455 F.2d 586, 587 (CCPA 1972). See also Net Moneyin, Inc. v. Verisign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008). Here the Examiner selectively points out what Chen discloses with respect to various disclosed embodiments (Ans. 3-6), but does not point out where Chen describes a product that meets all of the requirements, as recited in sole independent claim 1 without significant picking and choosing from various embodiments described by Chen. Appeal 2009-006894 Application 10/950,881 4 For example, independent claim 1 requires that the wiper comprises a non-woven web material including thermoplastic polyolefin or polyester polymer and that the web material has been both creped and subjected to electret treatment.1 With regard to the claim 1 requirement for the product to have been subject to electret treatment, the Examiner refers to lines 37 and 38 of column 36 of Chen (Ans. 3, 5, and 6). However, as basically argued by Appellants, this referred to portion of Chen is part of a paragraph that mentions electret treatment among 15 types of treatment that may be applied to a base sheet (Br. 7). Moreover, Chen discloses that any of the listed treatments can occur before or after hydrophobic material is added and the Examiner has not established that Chen specifies treating a base sheet that includes thermoplastic fibers of the type required by the rejected claims via a combination of electret treatment and creping (Chen, col. 36, ll. 7-40; see generally Ans.). In this regard, Chen discloses that particulate and other types of hydrophobic material can be employed other than fibers (col. 33, l. 3 –col. 35, l. 57). In addition, Chen, when discussing synthetic fibers as options for the base sheet, is not solely limited to the use of polyester or polyolefin fibers (col. 35, ll. 44-57). The Examiner further refers to columns 1, 3, 9, 28, 38, and 39 of Chen for alleged teachings of some of the claim features, including the mentioning of creping and thermoplastic fibers with respect to various embodiments of Chen, without establishing how these disclosures are so linked by Chen as to describe the claimed subject matter, as a whole (Ans. 1-6). In particular, it 1 The Specification describes a description of creping and electret treatment and the effects thereof on the treated product (Spec, pp. 7, 8, 11, and 12). Appeal 2009-006894 Application 10/950,881 5 would have required significant selection from the suggested list of treatments at column 36, together with the selection of creping and of polyolefin or polyester nonwoven webs described elsewhere in Chen to arrive at a combination of creping and electret treatments. Thus, as argued by Appellants, the record indicates that the Examiner relies upon prohibited picking and choosing in an attempt to show anticipation of the claimed subject matter by Chen. Consequently, we reverse the anticipation rejection, on this record. Obviousness Rejection Concerning the Examiner’s separate obviousness rejection of dependent claims 2, 3, and 13-15 over Chen in view of Sayovitz, the Examiner relies on Sayovitz for features set forth in the these dependent claims and Chen for allegedly anticipating the subject matter of parent claims rejected under § 102, an anticipation determination with which we disagree for reasons discussed above (Ans. 4). The Examiner does not otherwise explain how the combination of Chen and Sayovitz renders the subject matter of any of dependent claims 2, 3, and 13-15, including the subject matter incorporated from claim 1, obvious to one of ordinary skill in the art. Thus, the flaw present in the anticipation rejection, as discussed above, carries forward to the Examiner’s obviousness rejection. It follows that we shall also reverse the obviousness rejection, on this record. Appeal 2009-006894 Application 10/950,881 6 ORDER The Examiner’s decision to reject the appealed claims is reversed. REVERSED PL Initial: sld KIMBERLY-CLARK WORLDWIDE, INC. Tara Pohlkotte 401 NORTH LAKE STREET NEENAH WI 54956 [MAILING ADDRESS OF APPELLANT]