Ex Parte LAKSO et alDownload PDFPatent Trial and Appeal BoardAug 29, 201813888989 (P.T.A.B. Aug. 29, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/888,989 05/07/2013 105718 7590 08/31/2018 SCA Hygiene Products AB c/o Buchanan Ingersoll & Rooney, PC 1737 King Street, Suite 500 Alexandria, VA 22314 FIRST NAMED INVENTOR ELISABETH LAKSO 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 1018798-000693 1008 EXAMINER CAILLOUET, CHRISTOPHER C ART UNIT PAPER NUMBER 1745 NOTIFICATION DATE DELIVERY MODE 08/31/2018 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): ADIPDOC 1@BIPC.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ELISABETH LAKSO, HANS EEN, and JAN W ASTLUND- KARLSSON Appeal2017-000492 Application 13/888,989 1 Technology Center 1700 Before JEFFREY T. SMITH, MICHAEL G. McMANUS, and SHELDON M. McGEE, Administrative Patent Judges. McGEE, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134, Appellant seeks our review of the Examiner's rejections of claims 2-22. App. Br. 2. An oral hearing was conducted on August 16, 2018. We have jurisdiction. 35 U.S.C. § 6. We affirm. 1 Appellant is the Applicant, SCA Hygiene Products AB, which is also identified as the real party in interest. App. Br. 2. Appeal2017-000492 Application 13/888,989 SUBJECT MATTER The subject matter on appeal concerns methods of producing pant- type absorbent articles such as diapers. Spec. 1: 11-22. Independent claim 2 is illustrative of the appealed subject matter, and is copied below from the Claims Appendix to the Appeal Brief, with emphasis added to relevant limitations at issue in this appeal: 2. A method for producing pant-type absorbent articles each article including a chassis structure having at least one elastic panel and an integrated absorbent core component, the method including a continuous pant-forming process comprising forming the chassis structure and incorporating the absorbent core component into the chassis structure, wherein the at least one elastic panel is produced by: stretching an activated two-layer laminate by 35-200% in the activation direction and introducing the activated two-layer laminate in the pant-forming process, wherein the activated two-layer laminate is formed by: separately producing a two-layer laminate comprising a first nonelastic fibrous nonwoven web and an elastic film; and activating the two-layer laminate by incremental stretching in at least one activation direction to render the two- layer laminate elastically stretchable; and laminating the elastic film of the stretched, activated two-layer laminate to a continuous nonwoven chassis web to form a three layer laminate, wherein a portion of the continuous nonwoven chassis web extends beyond the stretched, activated two-layer laminate in a direction perpendicular to the activation direction to form an extension part, wherein the stretched, activated two-layer laminate extends from a waist portion to a leg opening of the chassis structure of the pant- type absorbent article. 2 Appeal2017-000492 Application 13/888,989 STATEMENT OF THE CASE The Examiner rejects claims 2--4, 6, 8, 10-16, 18, and 20 under 35 U.S.C. § I03(a) as unpatentable over Wada,2 in view of Jenquin, 3 Veith, 4 and Wu. 5 Final Act. 2-8. The Examiner additionally rejects claims 5, 7, 9, 17, 19, and 21 as unpatentable under§ I03(a) over Wada, Jenquin, Veith, and Wu, and further in view of additional prior art. Id. 9-10. Relevant to this appeal, the Examiner finds, and Appellant does not dispute, that Wada discloses most of the limitations recited in claim 2, but "fails to disclose whether the elastic members may be formed by laminating a two layer elastic laminate onto the nonwoven web." Id. 2---6. The Examiner turns to the disclosure of Veith to address this difference and finds that Veith discloses it was known in the art to make a panel material with elastic properties for a disposable absorbent article. Id. at 6. The Examiner finds that Veith discloses a variety of elastomeric materials to render such elastic properties to an absorbent article - including elastic films, a plurality of elastic strands, and an elastic laminate. Id. citing Veith ,r 17. The Examiner concludes that it would have been obvious to substitute Wada's elastic strands for an elastic laminate because Veith teaches "they are known functional equivalents." Id. at 6-7. OPINION Appellant focuses its case on appeal on limitations appearing in each of the independent claims 2, 16, and 20. We, therefore, select claim 2 as 2 Wada et al., US 2006/0254708 Al, published Nov. 16, 2006. 3 Jenquin et al., US 2005/0230037 Al, published Oct. 20, 2005. 4 Veith et al., US 2004/0243089 Al, published Dec. 2, 2004. 5 Wu, US 5,422,172, issued Jun. 6, 1995. 3 Appeal2017-000492 Application 13/888,989 representative and decide the propriety of the rejection of claims 2--4, 6, 8, 10-16, 18, and 20 on the basis of claim 2 alone. 37 C.F.R. § 4I.37(c)(l)(iv). Appellant fails to substantially address separately rejected claims 5, 7, 9, 1 7, 19, and 21. App. Br. 11. Because claims 5, 7, 9, 17, 19, and 21 are not separately argued by Appellant, these claims stand or fall with the independent claims from which they depend. Appellant's sole argument on appeal is that the Examiner's proffered substitution of Wada's elastic strands for Veith's elastic film as part of an elastic laminate would change Wada's principle of operation- i.e., reducing wrinkles in the article once the absorbent core is attached. App. Br. 9--11; Reply Br. 1-3. Appellant urges that Wada accomplishes this by "lessening the contractive forces of the elastic members 4" by either cutting the elastic or by heat embossing. Id. at 9 citing Wada ,r 50. Thus, Appellant contends that the skilled artisan would have had no reason to substitute Wada's discontinuous strands with a continuous elastic film or laminate, and that doing so would change Wada's principle of operation. Id. at 9--10. For several reasons, this argument is unpersuasive of reversible error. First, Appellant's argument regarding the substitution of discontinuous strands with a continuous film or laminate appears to be a misstatement of the rejection actually made by the Examiner. The subject matter of independent claim 1 is directed to a method of making an absorbent article such as a diaper. However, Appellant's arguments appear to be mainly directed to the final product. In the rejection, the Examiner finds that Wada describes a method for making a diaper that differs from the claimed invention in that Wada fails to disclose that the elastic strands can be bonded to the nonwoven layer prior to lamination upon the nonwoven chassis component. Final Act. 4. The Examiner finds, however, that 4 Appeal2017-000492 Application 13/888,989 Jenquin discloses a method of manufacturing diapers wherein an elastic laminate is formed by first forming an elastic laminate comprising elastic components and nonwoven components and subsequently laminating to a continuous nonwoven chassis web. Id. 4--5. The Examiner then determines that a person of ordinary skill in the art would have recognized the method of first forming an elastic laminate comprising elastic components and nonwoven components that is then subsequently laminated to a continuous nonwoven chassis web to be known and conventional as evidenced by Jenquin. Id. 5. Thus, Appellant's argument regarding substituting a discontinuous elastic for a continuous elastic does not address the obviousness of first forming an elastic laminate comprising elastic components and nonwoven components that is subsequently laminated to a continuous nonwoven. More specifically, we note that Wada's three-layer laminate-which includes the elastic - is prepared prior to the step which lessens the contractive forces of the elastic. Wada ,r,r 45-50. In the very first step of Wada's manufacturing process, elastic members 4, 5A, and 5B are inserted between outer surface web 10 and inner surface web 11 to form three-layer laminate 12. Wada ,r 45; Fig. 1 A ( showing where, in step 1, elastic members 4, 5A, and 5B are fed between webs 10 and 11 to form laminate 12). At some later step, Wada discloses that the contractive forces of elastic members 4, 5A, and 5B are lessened by going through a treatment step, e.g., heat embossing or cutting. Wada ,r,r 49-50. Therefore, Wada's treatment step that lessens the contractive forces of the elastic member, e.g., cutting the elastic to make it discontinuous, occurs after laminate 12 is manufactured. 5 Appeal2017-000492 Application 13/888,989 Furthermore, we emphasize that Appellant has not provided any evidentiary support for the proposition that Wada's principle of operation would be changed by substituting Wada's elastic members for an elastic film. As such, Appellant's argument the recited elastic film would not behave similarly to Wada's elastic strands in the laminate structure (Reply Br. 2) amounts to no more than a bare assertion. "Attorney's argument in a brief cannot take the place of evidence." In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Simply stated, on this record, the Examiner undisputedly finds that Veith discloses the functional equivalence of certain elastomeric materials. Final Act. 7 citing Veith ,r 17; App. Br. generally. 6 Thus, the Examiner reasonably establishes that the skilled artisan would have recognized elastic laminates or films as known alternatives for Wada's elastic strands. "[W]hen a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result." KSR 6 Appellant for the first time in the Reply Brief (Reply Br. 2) argues that Veith fails to recognize the functional equivalency of elastic strands and elastic film. The Examiner made this factual finding in the Final Office Action (Final Act. 7), and Appellant has not shown good cause regarding why this argument could not have been raised in the Appeal Brief. See 37 C.F.R. § 41.37 (c)(l)(iv) ("Except as provided for in§§ 41.41, 41.47, and 41.52, any arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal."). See also 3 7 C.F .R. § 41.41 (b )(2) ("Any argument raised in the reply brief which was not raised in the appeal brief, or is not responsive to an argument raised in the examiner's answer, including any designated new ground of rejection, will not be considered by the Board for purposes of the present appeal, unless good cause is shown."). Consequently, we will not consider Appellant's untimely argument. 6 Appeal2017-000492 Application 13/888,989 Int'! Co. v. Teleflex Inc., 550 U.S. 398,416 (2007), citing United States v. Adams, 383 U.S. 39, 50-51 (1966). Here, Appellant fails to provide any evidence demonstrating that the use of an elastic laminate or film in Wada's process would be anything but predictable. See also In re Mayne, 104 F.3d 1339, 1340 (Fed. Cir. 1997) (explaining that the substitution of one known element for a known equivalent is prima facie obvious). For these reasons, and those provided by the Examiner, Appellant has failed to identify reversible error in the Examiner's rejection of claims 2-22. We, therefore, sustain the Examiner's rejections of these claims. DECISION The Examiner's final decision to reject claims 2-22 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). AFFIRMED 7 Copy with citationCopy as parenthetical citation