Ex Parte Lagerstedt-Eidrup et al

Board of Patent Appeals and Interferences

Mar 20, 2012

10427980 (B.P.A.I. Mar. 20, 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.
10/427,980 05/02/2003 Marie-Louise Lagerstedt-Eidrup 018798-135 7218
7590 03/20/2012
BURNS, DOANE, SWECKER & MATHIS, L.L.P.
P.O. Box 1404
Alexandria, VA 22313-1404
EXAMINER
STEPHENS, JACQUELINE F
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
03/20/2012 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 MARIE-LOUISE LAGERSTEDT-EIDRUP,
ANNE FARBROT, and BO RUNEMAN
__________

Appeal 2010-005207
Application 10/427,980
Technology Center 3700
__________

Before FRANCISCO C. PRATS, JEFFREY N. FREDMAN, and
STEPHEN WALSH, Administrative Patent Judges.

PRATS, Administrative Patent Judge.

DECISION ON APPEAL
This appeal under 35 U.S.C. § 134 involves claims to an absorbent
article that contains a skin conditioning agent that may be transferred to the
skin when the article is worn. The Examiner entered a rejection for
obviousness.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part.

Appeal 2010-005207
Application 10/427,980

2
STATEMENT OF THE CASE
Claims 1-3, 7-12, and 14-18 stand rejected and appealed (App. Br. 1).
1

Claim 1 is representative and reads as follows:
1. An absorbent article comprising:
a liquid permeable topsheet,
a liquid impermeable backsheet,
an absorbent body enclosed therebetween,
a hydrogel foam made from a hydrogel material to be applied in
contact with the skin of a wearer during use, and
a skin conditioning agent contained in the hydrogel foam to be
applied in skin contact with the wearer in such a manner that the skin
conditioning agent is transferable to the skin when the hydrogel foam
is applied in contact with the skin,
wherein the hydrogel foam contains between 5 and 95% by
weight skin conditioning agent, calculated on the combined weight of
hydrogel foam and skin conditioning agent.

The sole rejection is before us for review is the Examiner’s rejection
of claims 1-3, 7-12, and 14-18, under 35 U.S.C. § 103(a) as obvious over
Hähnle
2
and Schulz
3
(Ans. 3-7).
4

DISCUSSION
The Examiner found that Hähnle described a hydrogel foam
substantially as claimed, suitable for use in a diaper having a topsheet,
backsheet, and absorbent core, but conceded that the reference differed from
the claims in that it did not disclose that the foam contained a skin
conditioning agent (Ans. 4). To address that difference, the Examiner cited

1
Appeal Brief entered February 4, 2008.
2
U.S. Patent No. 6,136,873 (issued October 24, 2000).
3
WO 97/38735 A1 (published October 23, 1997).
4
Examiner’s Answer entered November 6, 2009.
Appeal 2010-005207
Application 10/427,980

3
Schulz as disclosing an absorbent article that had “a foam layer comprising a
skin-conditioning agent (organophilic clay or other compositions comprising
an organophilic clay, such as emollients or superabsorbents); the layer may
be placed between other layers of the article” (id.). The Examiner found that
Schulz taught that “providing the absorbent article with a skin-conditioning
agent allows for prevention and treatment of dermatitis” (id. at 5).
Based on the references’ teachings, the Examiner reasoned that an
ordinary artisan would have been prompted to modify Hähnle’s article “to
comprise a skin conditioning agent, as taught by Schulz, since doing so
would provide the absorbent article dermatitis prevention and treatment
abilities” (id.).
As stated in In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992):
[T]he examiner bears the initial burden . . . of presenting a
prima facie case of unpatentability. . . .
After evidence or argument is submitted by the applicant
in response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration
to persuasiveness of argument.

In this case, Appellants’ arguments do not persuade us that a
preponderance of the evidence fails to support the Examiner’s obviousness
conclusion as to claim 1.
As the Examiner found, Schulz discloses that an organophilic clay can
be used to adsorb, and thereby inactivate, skin-irritating fecal enzymes “by
applying [the clay] to the skin in those areas generally covered by an infant’s
diaper or by applying it to the diaper itself or incorporating it into the
structure of the diaper” (Schulz 3). We are not persuaded that Schulz’s
teachings regarding the applicability of its clay are limited to including the
Appeal 2010-005207
Application 10/427,980

4
clay in polyurethane foams, nor are we persuaded that the Examiner
interpreted Schulz too generally.
Contrary to Appellants’ arguments (App. Br. 3-7; see also Reply Br.
1), Schulz does not specifically require the clay to be applied to a
polyurethane foam; rather, the polyurethane foam is merely described as an
example of suitable foams to which the clay may be added, for ultimate
incorporation into a diaper (Schulz 8 (“The superabsorbent polymer
containing an organophilic clay may also be incorporated into a foam layer,
e.g., a polyurethane foam layer which is then fixed to a fabric layer or placed
between fabric layers to form a fabric suitable for use in a garment such as a
diaper.”)).
Moreover, rather than limiting its clay to a polyurethane foam carrier,
Schulz discloses that the clay can be applied to the diaper in a number of
ways, including direct application to the diaper’s fibers, impregnating the
garment with the clay by dipping it into a clay-containing liquid vehicle, or
by combining the clay with a superabsorbent acrylic acid-based polymer,
which can in turn be incorporated into the diapers, including into foam
structures within the diapers (id. at 7-8).
Thus, given the variety of approaches Schulz describes as being
suitable for applying its clay to diapers, we agree with the Examiner that an
ordinary artisan would have been prompted to include Schulz’s clay in
Hähnle’s hydrogel foam so as to impart anti-skin-irritating properties to a
diaper that ultimately contained that foam. In this regard, we note that, like
the superabsorbent carriers described by Schulz (id.), Hähnle’s hydrogel
foams can be made from acrylic acid polymers (see, e.g., Hähnle, col. 15, l.
60, through col. 16, l. 50 (Example 1)).
Appeal 2010-005207
Application 10/427,980

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As the Supreme Court has noted, “if a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.” KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007).
Moreover, given Schulz’s disclosure that its clay may be deployed in
combination with a superabsorbent polymer (Schulz 7-8), we are not
persuaded, as Appellants intimate (see App. Br. 6), that the absorptive
properties of a hydrogel foam would have discouraged an ordinary artisan
from including Schulz’s clay in a superabsorbent hydrogel polymer foam for
ultimate delivery in a diaper. We are also unpersuaded that following
Schulz’s teaching would have failed to result in the clay being transferable
to skin when the hydrogel was applied to the skin, as claim 1 also requires.
As Appellants note, Schulz discloses a preferred embodiment in
which its clay is combined with a superabsorbent polymer (Schulz 7-8).
However, rather than being sequestered in the polymer during
polymerization, the clay is simply mixed with a solution containing the
preexisting polymer:
The organophilic clay can be combined with such a
superabsorbent polymer by any means that assures adequate
dispersal in the polymer matrix. For example, an organophilic
clay, e.g., quaternium 18 bentonite, can be dispersed as a finely
divided suspension in an aqueous suspension of a
superabsorbent polymer such as arises in the manufacture of
such polymers by polymerization of conventional hydrophilic
monomers in aqueous solution or suspension. This dispersion
can be accomplished by conventional high-shear mixing. A
solid powder containing the organophilic clay dispersed in the
superabsorbent polymer can then be prepared by conventional
drying procedures such as spray drying, jet drying, or the like.
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Application 10/427,980

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(Id.)
Thus, we are not persuaded that Schulz describes its clay as being
deployed in a construct that would preclude its transfer to the skin.
Moreover, Appellants point to no direct or specific evidence demonstrating
that incorporating either the superabsorbent/clay combination expressly
described by Schulz as being suitable for incorporation into diaper foam (id.
at 8), or incorporating Schulz’s clay directly into a skin-contacting hydrogel
foam component of a diaper, would fail to allow the clay to transfer to the
skin upon contact with the hydrogel. To the contrary, given Schulz’s
disclosure of the suitability of directly applying the clay to the skin or the
diaper, the evidence of record suggests the desirability of allowing the clay
to be transferred to the skin when the hydrogel foam is applied in contact
with the skin, as claim 1 requires.
In sum, Appellants’ arguments do not persuade us that the Examiner
failed to make a prima facie case of obviousness as to claim 1. We therefore
affirm the Examiner’s rejection of that claim over Hähnle and Schulz, as
well as the rejection of claims 2, 3, 7-12 and 14-16, which were argued in
the same grouping (see App. Br. 4).
As to claim 17, however, we come to a different conclusion. Claim
17 recites an absorbent article similar to that of claim 1, except that claim 17
requires the skin conditioning agent to include any one of a number of
emollients.
The Examiner found that Schulz taught that emollients were included
in its absorbent article (Ans. 4). We agree with Appellants that the
Examiner’s finding is not supported by Schulz’s disclosure.
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Application 10/427,980

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We acknowledge Schulz’s disclosure that suitable vehicles for its
organophilic clay “include hydrophobic vehicles such as petrolatum or
mineral oil or mixtures thereof” (Schulz 5). However, these vehicles are
described in the context of a “dermatological composition” (id.), which is
described separately from the clay-impregnated garment described at pages
7 and 8 of Schulz.
Thus, we are not persuaded that the Examiner has adequately
explained how or why Schulz teaches or suggests incorporating an emollient
into an absorbent article, such as a diaper. As the Examiner has not
otherwise explained why an ordinary artisan would have considered it
obvious to incorporate an emollient into a hydrogel foam-containing
absorbent article as recited in claim 17, we reverse the Examiner’s rejection
of that claim, and its dependent claim 18, over Hähnle and Schulz.

SUMMARY
We affirm the Examiner’s obviousness rejection of claims 1-3, 7-12,
and 14-16 over Hähnle and Schulz.
However, we reverse that rejection as to claims 17 and 18.

TIME PERIOD
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-IN-PART

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