Ex Parte Kellenberger et al

Board of Patent Appeals and Interferences

Sep 10, 2012

10366872 (B.P.A.I. Sep. 10, 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.
10/366,872 02/14/2003 Stanley R. Kellenberger 17858 2801
23556 7590 09/11/2012
KIMBERLY-CLARK WORLDWIDE, INC.
Tara Pohlkotte
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
CHAPMAN, GINGER T
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
09/11/2012 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 STANLEY R. KELLENBERGER,
FRED R. RADWANSKI, THOMAS HAROLD ROESSLER,
ROMAN A. WEYENBERG, JR., HERB F. VELAZQUEZ,
DUANE L. MCDONALD, and DENISE J. NELSON
__________

Appeal 2011-006685
Application 10/366,872
Technology Center 3700
__________

Before LORA M. GREEN, RICHARD M. LEBOVITZ, and
STEPHEN WALSH, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner‟s rejection of claims 1-3, 5-17, and 19-30. We have jurisdiction
under 35 U.S.C. § 6(b).
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STATEMENT OF THE CASE
Claim 1 is representative of the claims on appeal, and reads as follows
(emphasis added):
1. A garment-style disposable absorbent article having a folded
configuration and an unfolded configuration, wherein the folded and
unfolded configurations each have a footprint, wherein a ratio
between the footprint of the folded configuration and the footprint of
the unfolded configuration is less than 0.09 and greater than zero,
wherein the article is maintained prior to and during packaging at a
moisture content of less than 10 percent, and wherein the article has a
folded configuration that is smaller in at least two dimensions than the
unfolded configuration of the article.

The following grounds of rejection are before us for review:
I. Claims 1, 2, and 9-11 stand rejected under 35 U.S.C. § 103(a) as
being rendered obvious by the combination of Kuske
1
and
Weisman
2
(Ans. 3). As Appellants do not argue the claims
separately, we focus our analysis on claim 1, and claims 2 and 9-11
stand or fall with that claim. 37 C.F.R. § 41.37(c)(1)(vii).
II. Claim 3 stands rejected under 35 U.S.C. § 103(a) as being rendered
obvious by the combination of Kuske and Weisman as further
combined with Muckenfuhs
3
(Ans. 11).
III. Claims 5-8 stand rejected under 35 U.S.C. § 103(a) as being
rendered obvious by the combination of Kuske and Weisman as
further combined with Muckenfuhs and Persson
4
(Ans. 12). As

1
Kuske et al., US 6,318,555 B1, issued Nov. 20, 2001.
2
Weisman, EP 0 122 042 A2, published Mar. 9, 1984.
3
Muckenfuhs et al., US 5,379,897, issued Jan. 10, 1995.
4
Persson et al., US 6,854,600 B1, issued Feb. 15, 2005.
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Appellants do not argue the claims separately, we focus our
analysis on claim 5, and claims 6-8 stand or fall with that claim.
IV. Claims 12, 14-17, and 195 stand rejected under 35 U.S.C. § 103(a)
as being rendered obvious by the combination of Kuske and
Persson (Ans. 14). As Appellants do not argue the claims
separately, we focus our analysis on claim 12, and claims 14-17
and 19 stand or fall with that claim.
V. Claims 13 and 20 stand rejected under 35 U.S.C. § 103(a) as being
rendered obvious by the combination of Kuske and Persson as
further combined with Muckenfuhs (Ans. 19). As Appellants do
not argue the claims separately, we focus our analysis on claim 20,
and claim 13 stands or falls with that claim.
VI. Claims 21-286 stand rejected under 35 U.S.C. § 103(a) as being
rendered obvious by the combination of Kuske and Persson as
further combined with Frank
7
(Ans. 20). As Appellants do not
argue the claims separately, we focus our analysis on claim 21, and
claims 22-28 stand or fall with that claim.

5
Appellants state that the grounds of rejection is that claims 12-19 are
rejected under 35 U.S.C. § 103(a) as being rendered obvious by the
combination of Kuske and Persson (App. Br. 5). As Appellants do not argue
the claims separately as to either this rejection or the rejection of claim 20
over the combination of Kuske and Persson as further combined with
Muckenfuhs, we group claim 13 with claim 20.
6
Appellants state that the grounds of rejection is that claims 21-30 are
rejected under 35 U.S.C. § 103(a) as being rendered obvious by the Kuske
and Persson as further combined with Frank. Appellants, however, only
argue claim 21, and do not separately argue claims 29 and 30.
7
Frank et al., US 5,036,978, issued Aug. 6, 1991.
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VII. Claims 29 and 308 stand rejected under 35 U.S.C. § 103(a) as
being rendered obvious by the combination of Kuske and Persson
as further combined with Frank and Muckenfuhs (Ans. 23).

We affirm.

ANALYSIS
Because we agree with the Examiner‟s findings and conclusions as set
forth in the Examiner‟s Answer, we adopt them as our own. We also
highlight some of those findings and conclusions below.
As to the rejection of claim 1 as being rendered obvious by the
combination of Kuske and Weisman, the Examiner finds that Kuske teaches
or renders obvious all of the elements of claim 1 (Ans. 3-7), except for
teaching that “the article is maintained at a moisture content of less than 10
percent” (id. at 7). The Examiner notes, however, that Kuske teaches “that
the article may contain functional components such as, inter alia, moisture-
sensitive materials, perfumes, odor control agents, fluid storage areas and
environmentally-sensitive materials” (id. (citing Kuske, col. 3, ll. 4-10)).
The Examiner thus finds that the ordinary artisan would understand that
“common moisture-sensitive materials would require protection from
ambient moisture to preserve their effectiveness” (Ans. 7).
The Examiner finds that Weisman “teaches manufacture of absorbent
fluid storage cores for disposable absorbent articles,” teaching “that it is
essential for the superabsorbent [ ]articles to remain dry during

8
See n.6.
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manufacture” (id. at 8). The Examiner finds further that “Weisman teaches
… that in order to ensure that the absorbent fluid storage core remains
substantially unbonded, the moisture content of the absorbent structure must
be maintained at less than about 10% by weight of the dry absorbent
structure” (id. at 9). The Examiner finds that “Weisman discloses
maintaining the article at less than about 10% by weight during manufacture
and processing of the article, which comprises the time prior to and during
packaging because the article is typically packaged after manufacture and
processing stages are completed” (id.). The Examiner thus finds that
Weisman provides a reason “to protect the articles from humidity and
moisture during manufacture, packaging and storage of the articles to
preserve their properties” (id.).
The Examiner thus concludes “it would have been obvious to one
having ordinary skill in the art at the time the invention was made to
maintain the articles of Kuske prior to and during packaging at a moisture
content of less than 10 percent as taught by Weisman in order to preserve the
moisture sensitive and absorbent materials contained within the articles until
such time as they are used” (id. at 9-10).
Appellants argue that Weisman does not remedy the deficiency of
Kuske (App. Br. 6). Appellants assert that “Weisman does not disclose,
teach, or suggest at what moisture content an article is maintained prior to
and during packaging,” but only “discloses … that absorbent material and an
absorbent structure should be maintained at a lower humidity during
manufacture” (id.). Thus, according to Appellants, “Weisman does not
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address the humidity level of an absorbent article, much less the humidity
level of an absorbent article prior to and during packaging” (id.).
Appellants further assert that there is no reason to combine Kuske and
Weisman, as the presence of a frangible line on the packaging material for
accessing the interior space of the package of Kuske leaves the package
open to the environment, and Weisman does not teach packaging of any kind
(id. at 7).
Appellants‟ arguments are not convincing. As found by the Examiner
(Ans. 9), Weisman teaches that the hydrogel particles take up some moisture
during normal storage and handling, and that exposure of the hydrogel to
humidified air “may result in substantial bonding of the structure during
subsequent processing … if such exposure is prolonged” (Weisman, p. 11).
Thus, we agree with the Examiner that Weisman provides a reason as to why
the ordinary artisan would maintain an absorbent article, which both Kuske
and Weisman recognize can contain moisture sensitive materials, at a
moisture content of less than 10% both prior to and during packaging.
Moreover, we do not find that there is no reason to make the
combination based on Kuske‟s use of a frangible line to access the package‟s
interior. As found by the Examiner (Ans. 26), Kuske teaches that the
frangible line may be just a thinner section of plastic and is torn in order to
open the package (see Kuske, col. 4, ll. 37-58). Thus, just because Kuske
teaches the use of a frangible line to allow the consumer to open the package
does not mean that the package is open to the environment prior to breaking
the line, or that the ordinary artisan would not have a reason to protect the
moisture sensitive product from exposure to moisture from the environment.
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As to the rejection of claim 3 Appellants reiterate the arguments made
above with respect to the combination of Kuske and Weisman, asserting
further that Muckenfuhs does not remedy the deficiencies above (App. Br.
7). Appellants further assert that as “Muckenfuhs already has folded
articles, there is no reason for one skilled in the art to turn to Kuske for
another example of folded articles” (id.).
Appellants‟ arguments are not convincing for the reasons set forth
with respect to claim 1. Moreover, the Examiner did not rely on
Muckenfuhs as another example of folded articles, but as evidence as to that
it was known in the art to package disposable absorbent articles in moisture
impermeable packaging to preserve and maintain the articles (Ans. 12).
As to the rejection of claim 5, Appellants argue that Persson does not
remedy the deficiencies of the combination of Kuske and Weisman as used
in the rejection of claim 1 (App. Br. 8). Specifically, Appellants assert that
“Persson does not disclose, teach, or suggest the moisture content at which
an article is maintained because Persson never mentions the moisture
content of an article, either prior to or during packaging” (id.).
Appellants‟ arguments are not convincing for the reasons set forth
with respect to claim 1. And as explained above, Weisman provides a
reason as to why the ordinary artisan would maintain an absorbent article,
which both Kuske and Weisman recognize can contain moisture sensitive
materials, at a moisture content of less than 10% both prior to and during
packaging.
As to the rejection of claim 12, Appellants argue that the claim
requires that the absorbent article be maintained and packaged at a moisture
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content of less than 5%, which moisture content is not disclosed by either
Kuske or Persson (id.). Appellants further assert that “Persson does not
disclose, teach, or suggest at what moisture content an article is maintained
prior to and during packaging” (id. 8-9). Appellants note that Persson
“suggests that a package can be given a dry atmosphere without defining
„dry‟ in any manner” (id. at 9). Appellants assert that what Persson does
teach is that the “atmosphere around applicator equipment can be maintained
at less than 20% humidity” (id.).
Appellants further assert that there is no reason to combine Kuske and
Persson, as the presence of a frangible line on the packaging material of
Kuske leaves the package of Kuske open to the environment, and Persson
“reflects this view in that Persson states that standard packaging having
„open packages into which air can enter freely‟ has „many advantages‟” (id.).
According to Appellants, the packaging of Persson is only required “when
employing „active additives‟ that are sensitive to moisture,” asserting that
“Kuske „employs no such active additives‟” (id.).
Appellants‟ arguments are not convincing. Persson teaches that it is
important to protect moisture sensitive absorbent articles from the time of
packaging to the time of use to allow any active additive to retain its
properties (Persson, col. 2, ll. 58-63). Persson also teaches that it is suitable
to dry an absorbent material to a water content below 1-2 percent (id. at. col.
5, l. 65-col. 6, l. 3). While Persson teaches that the atmosphere surrounding
the applicator equipment should have a moisture content of less than 20%
(id. at col. 6, ll. 4-8), Persson also teaches it should be kept as dry as
possible, and that a dry atmosphere may be maintained in the packaging unit
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by delivering a dry gas or adding a drying substance (id. at col. 6, ll. 4-19).
Thus, the Examiner‟s determination that it would have been obvious in view
of Persson to package and maintain an absorbent article at a moisture
content of less than 5% to protect and maintain the properties of the moisture
sensitive additives of the absorbent article is supported by a preponderance
of the evidence.
And contrary to Appellants‟ assertion that Kuske employs no moisture
sensitive additives, as discussed above, Kuske specifically teaches that the
article may contain functional components such as moisture-sensitive and
environmentally-sensitive materials (Kuske, col. 3, ll. 4-10). Moreover, as
discussed above with respect to claim 1, just because Kuske may use a
frangible line to allow for ease of opening by the consumer does not
necessarily mean the absorbent article is open to the environment prior to the
line being broken.
As to claim 20, Appellants argue that Muckenfuhs does not remedy
the deficiencies of the combination of Kuske and Persson, as “Muckenfuhs
does not disclose, teach, or suggest at what moisture content an article is
maintained prior to and during packaging” (App. Br. 9-10).
Appellants‟ arguments are not found to be convincing for the reasons
set forth above in the discussion of claim 12.
As to the rejection of claim 21, Appellants essentially reiterate the
arguments as to Persson made above with respect to claim 12 (App. Br. 10-
11). Those arguments are not found to be convincing for the reasons set
forth above with respect to claim 12.

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SUMMARY
The rejections on appeal are affirmed.

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)(1)(iv)(2006).

AFFIRMED

cdc