Ex Parte McCormack et al

Patent Trial and Appeal Board

Dec 17, 2014

11774016 (P.T.A.B. Dec. 17, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/774,016 07/06/2007 Ann L. McCormack KCX-1229
(64048978US02)
2435
22827 7590 12/17/2014
DORITY & MANNING, P.A.
POST OFFICE BOX 1449
GREENVILLE, SC 29602-1449
EXAMINER
CHOI, PETER Y
ART UNIT PAPER NUMBER
1786
MAIL DATE DELIVERY MODE
12/17/2014 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANN L. McCORMACK, JOSE SIQUEIRA, and
LAURA ELIZABETH KECK
____________

Appeal 2013-003460
Application 11/774,0161
Technology Center 1700
____________

Before BRADLEY R. GARRIS, MARK NAGUMO, and
N. WHITNEY WILSON, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1–18, 21, 47–51, and 54–56. We have jurisdiction
under 35 U.S.C. § 6.
We AFFIRM.
Appellants claim a skin care product such as a glove comprising a
nonwoven composite comprising an elastic film thermally fused to a
nonwoven web material at bond sites distributed across a surface of the film,

1 According to Appellants, the real party in interest is Kimberly-Clark
Worldwide, Inc. Br. 1.
Appeal 2013-003460
Application 11/774,016

2
wherein the composite is liquid-impervious, and a skin care composition
disposed on an interior surface of the composite (sole independent claim 1).
A copy of representative claim 1, taken from the Claims Appendix of
the Appeal Brief, appears below.
1. A skin care product that defines an interior configured
to receive a foot or hand of a user, the skin care product
comprising:
a nonwoven composite comprising an elastic film
positioned adjacent and thermally fused to a nonwoven web
material at a plurality of discrete bond sites, wherein the bond
sites are distributed across a surface of the film, the elastic film
comprising a semi-crystalline propylene-based polymer having
a density of about 0.88 grams per cubic centimeter or less,
wherein the composite is liquid-impervious; and
a skin care composition disposed on a surface of the
nonwoven composite, wherein the elastic film is resistant to
attack by the skin care composition;
wherein the product is in the form of a glove or sock,
wherein the skin care composition and nonwoven composite are
positioned so that the skin care composition faces the interior of
the product for communicating with the hand or foot of the
user.
Under 35 U.S.C. § 103(a), the Examiner rejects independent claim 1
as unpatentable over McCormack (US 5,882,769 issued Mar. 16, 1999) in
view of Stager (US 4,185,330 issued Jan. 29, 1980), Stadelman
(US 2005/0170729 A1 published Aug. 4, 2005), and the VistamaxxTM
reference (EXXONMOBIL CHEMICAL, VISTAMAXXTM PROPYLENE-BASED
ELASTOMERS (2010)) (Final Action 2–7) and rejects dependent claims 2–18,
21, 47–51, and 54–56 as unpatentable over these references alone or in
combination with additional prior art (id. at 8–11).
Appeal 2013-003460
Application 11/774,016

3
Appellants do not present separate arguments specifically directed to
any of the dependent claims under rejection (see Br. 14–15). Therefore, the
dependent claims will stand or fall with their parent independent claim 1.
We sustain the above rejections for the reasons expressed by the
Examiner and below.
Appellants argue that the first layer of McCormack’s composite is an
inelastic film contrary to the “elastic film” limitation of claim 1 (Br. 6) such
that McCormack would not have been combined with the elastic film
teaching of Stadelman (id. at 10) and such that “McCormack . . . actually
teaches away from the elastic film . . . of the pending claims” (id. at 12). In
response, the Examiner determines that the claim term “elastic” as defined in
Appellants’ Specification encompasses the first layer of McCormack
because this layer is stretchable and, upon relaxation of the stretching forces,
retractable (Ans. 4–5). Significantly, Appellants do not contest the
Examiner’s determination in the record before us (i.e., no Reply Brief has
been filed). For these reasons, the argument under consideration lacks
persuasive merit.
Appellants further argue that the combination of McCormack and
Stager would have resulted in “bonding between the glove layers . . . only at
the marginal edge, which is in stark contrast to the pending claims, which
describe bond sites between a nonwoven composite and an elastic film that
are distributed across a surface of the film” (Br. 8 (emphasis omitted)). This
argument also is not persuasive. As correctly explained by the Examiner
(Ans. 7) and contrary to Appellants’ representation, Stager does not teach
that the glove layers must be bonded only at the marginal edge (see Stager
col. 2, ll. 45–53 (cited by Appellants at Br. 8)). In any event, Appellants fail
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Application 11/774,016

4
to explain why the claim 1 limitation “wherein the bond sites are distributed
across a surface of the film” is not satisfied by bond sites distributed across a
surface which is confined to the marginal edge of the film.
In addition, Appellants argue that, “although Stager indicates that
while its glove can be free of apertures or openings, it also suggests that
when a lanolin skin care solution is used, apertures or openings are
preferred” (Br. 9) whereas “the pending claims are directed to a liquid
impervious glove” (id.). The deficiency of this argument is that Appellants
do not explain why the aforementioned preference somehow negates
Stager’s express teaching that the glove may be constructed without
openings (col. 4, ll. 47–49 (cited by the Examiner at Final Action 4 and at
Ans. 7)).
Finally, we perceive no convincing merit in Appellants’ argument that
McCormack is nonanalogous art (Br. 13–14). In response, the Examiner
determines that McCormack (as well as Stadelman) and the claimed
invention are in the same field of endeavor as evinced by Appellants’
Specification disclosure that the claimed composite may be used in a wide
variety of personal care products which include those disclosed by
McCormack (Ans. 9 (citing Spec. 25–26)). As above, Appellants do not
challenge the Examiner’s determination in this record.
The decision of the Examiner 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
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