Ex Parte Maladen et al

Patent Trial and Appeal Board

Jun 20, 2018

14642870 (P.T.A.B. Jun. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/642,870 03/10/2015
27752 7590 06/22/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Ryan Dominic Maladen
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.
13489M4 1495
EXAMINER
MINSKEY, JACOB T
ART UNIT PAPER NUMBER
1741
NOTIFICATION DATE DELIVERY MODE
06/22/2018 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):
centraldocket.im @pg.com
pair_pg@firsttofile.com
mayer.jk@pg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RYAN DOMINIC MALADEN, JEFFREY GLEN SHEEHAN,
OSMAN POLAT, and DOUGLAS JAY BARKEY
Appeal2017-010180
Application 14/642,870
Technology Center 1700
Before GEORGE C. BEST, JEFFREY R. SNAY, and
JENNIFER R. GUPTA, Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-25. We have jurisdiction. 35 U.S.C. § 6(b ).
We affirm.
1 We cite the Specification ("Spec.") filed March 10, 2015; Final Office
Action ("Final Act.") dated September 2, 2016; Appellant's Appeal Brief
("Br.") dated February 2, 2017; and Examiner's Answer ("Ans.") dated
May 16, 2017.
2 Appellant is the Applicant, The Proctor & Gamble Company, which
according to the Appeal Brief, is the real party in interest. Br. 1.
Appeal2017-010180
Application 14/642,870
BACKGROUND
The subject matter on appeal relates to fibrous structures, such as
absorbent towels, having irregularly patterned discrete elements, resulting in
improved absorbency rate. Spec. 1, 13. Claim 1 is illustrative:
1. A rolled tissue product, the rolled tissue product
compnsmg:
a. in rolled form, a fibrous structure, the fibrous structure
exhibiting a plurality of discrete wet-formed knuckles
extending from portions of the surface of the fibrous structure,
wherein the plurality of discrete wet-formed knuckles are
arranged in a pattern of repeat units, the repeat unit including a
plurality of rows arranged orthogonally in an X-Y plane, each
row having a portion of the discrete wet-formed knuckles, each
discrete wet-formed knuckles separated from adjacent discrete
knuckles in a row by a distance of between 0.020 inch and
0.200 inch, and wherein the discrete wet-formed knuckles are
characterized by:
i. each of the discrete wet-formed knuckles within
the repeat unit have substantially the same shape,
ii. each of the discrete wet-formed knuckles within
a repeat unit have substantially the same size; and
iii. wherein the distance between at least two
adjacent discrete wet-formed knuckles in each row are
non-uniform such that the repeat unit exhibits varying
distances along the rows in both the X and Y axes with
the distance in the Y-axis direction being between 0.020
inch and 0.200 inch and the distance in the X-direction
being between about 0.010 inch and 0.100 inch; and,
b. the rolled tissue product exhibits a property selected
from the group consisting of roll bulk of greater than 4 cm3/g
and percent compressibility of less than 10%.
App. Br. (Claims Appendix at 1) (emphasis added to highlight a key claim
element in dispute).
2
Appeal2017-010180
Application 14/642,870
REJECTIONS
I. Claims 1-25 stand rejected under 35 U.S.C. § 103 as unpatentable
over Johnson, 3 Benz, 4 and Underhill. 5
II. Claims 1-25 also stand rejected under 35 U.S.C. § 103 as
unpatentable over Johnson, Manifold, 6 and Underhill.
III. Claims 1-25 also stand rejected under 35 U.S.C. § 103 as
unpatentable over Johnson, Underhill, and Gao. 7
IV. Claims 1-25 also stand provisionally rejected on the ground of non-
statutory obvious-type double patenting over claims in Application Serial
Nos. 14/642,856 and 14/642,861.
OPINION
Rejections I and II
Each independent claim on appeal requires, inter alia, a rolled tissue
that exhibits "a property selected from the group consisting of roll bulk of
greater than 4 cm3 / g and percent compressibility of less than 10%."
Claims 1, 10, 19. The Examiner solely relies on Gao, in connection with
Rejection III, as evidence of a reason for providing a bulk or compressibility
value as claimed. Final Act. 7. However, Gao is not relied upon in support
of either Rejection I or Rejection II. See id. at 4--6. The Examiner does not
identify any evidence or technical reasoning in connection with either
3 US 4,514,345, issued April 30, 1985 ("Johnson").
4 US 3,817,827, issued June 18, 1974 ("Benz").
5 US 2004/0191486 Al, published September 30, 2004 ("Underhill").
6 US 2012/0107568 Al, published May 3, 2012 ("Manifold").
7 US 2007/0137814 Al, published June 21, 2007 ("Gao").
3
Appeal2017-010180
Application 14/642,870
Rejection I or Rejection II regarding the claimed roll bulk or compressibility
property. Rather, this feature of the claims is not addressed. See id.
Lacking any discussion of the claimed roll bulk or compressibility
property, we are persuaded that the Examiner fails to identify sufficient
evidence to support the obviousness determination. Accordingly, neither
Rejection I nor Rejection II is sustained.
Rejection III
In connection with Rejection III, the Examiner finds that Johnson
discloses a paper product formed by a papermaking belt having knuckles in
a repeating pattern, but that Johnson is "silent on the spacing between the
adjacent knuckles." Final Act. 4. The Examiner also finds that Underhill
discloses a tissue product having a knuckle pattern in which the knuckles are
"spaced apart by about 3. 7 mm ... in the X direction ( from dot to dot) and
about 2 mm in they direction (row to row)." Id. at 5 ( citing Underhill ,r 78).
The Examiner concludes that "[t]he variation of the knuckle positioning ...
is considered to be an aesthetic design choice on the pattern of the final
product." Id.
Underhill, in the passage relied upon by the Examiner, characterizes
the disclosed knuckle pattern as a "regular pattern of depressions."
Underhill ,r 78 ( emphasis added). In the same passage, Underhill identifies a
single value (about 3.7 mm) for the spacing between dots within a row, and
a single value (about 2 mm) for the spacing between rows. Id. Thus, the
relied-upon passage in Underhill expressly relates to a knuckle pattern
having uniform spacing in each direction. The Examiner does not rely upon
Gao for any teaching regarding knuckle spacing.
4
Appeal2017-010180
Application 14/642,870
Appellant argues, generally, that Underhill does not provide a reason
to form Johnson's product with the claimed non-uniform knuckle spacing.
Br. 6-7. We agree. The Examiner fails to articulate why Underhill' s
disclosure of uniform spacing would have provided one of ordinary skill
with a reason to provide non-uniform spacing in Johnson. Nor does the
Examiner explain why one of ordinary skill would particularly have
provided such non-uniform spacing along two different axes, as claimed.
On this appeal record, we consider the Examiner's statement that knuckle
spacing would have constituted an aesthetic design choice to be conclusory,
unsupported by a preponderance of evidence, and insufficient to support a
determination of obviousness with regard to Appellant's claims.
For the foregoing reasons, Rejection III also is not sustained.
Rejection IV
Appellant does not contest the Examiner's provisional obviousness
double patenting rejection. Accordingly, we summarily sustain
Rejection IV. 8
DECISION
The Examiner's decision rejecting claims 1-25 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
8 The applications on which this Rejection is based appear to have been
abandoned, which, if accurate, would render this ground of rejection moot.
5