10331823 (B.P.A.I. Sep. 24, 2010)

Ex Parte Petryk et al

Board of Patent Appeals and InterferencesSep 24, 2010

10331823 (B.P.A.I. Sep. 24, 2010)

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. 10/331,823 12/30/2002 Teresa De Jesus Petryk 17957 2348 23556 7590 09/24/2010 KIMBERLY-CLARK WORLDWIDE, INC. Tara Pohlkotte 2300 Winchester Rd. NEENAH, WI 54956 EXAMINER STEPHENS, JACQUELINE F ART UNIT PAPER NUMBER 3761 MAIL DATE DELIVERY MODE 09/24/2010 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 TERESA DE JESUS PETRYK, JASON MATTHEW ENGLISH, REBECCA WILLEY GRIFFIN, VARUNESH SHARMA, and PATRICIA A. STERN ____________________ Appeal 2010-000185 Application 10/331,823 Technology Center 3700 ____________________ Before: LINDA E. HORNER, WILLIAM F. PATE III, and MICHAEL W. O’NEILL, Administrative Patent Judges. PATE III, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2010-000185 Application 10/331,823 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1- 28. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. The claims are directed to absorbent products with enhanced rewet, intake, and stain masking performance. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An absorbent article, comprising: a liquid permeable liner layer having a top surface and a lower surface; a generally liquid impermeable outer cover; an absorbent layer disposed between said liner layer lower surface and said outer cover; and a series of spaced apart solidified deposits of a liquid impermeable material defined across said liner layer lower surface, the deposits being adhered to said liner layer lower surface to maintain position of the deposits during use of the article, wherein the liquid impermeable material does not contact a user's skin during use of the article, and wherein the spaced apart solidified deposits define a design. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Octavio US 6,025,535 Feb. 15, 2000 Hisanaka EP 1120097 A2 Aug. 1, 2001 REJECTIONS Claims 1-4 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Octavio. Ans. 3. Appeal 2010-000185 Application 10/331,823 3 Claims 1-28 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Hisanaka. Ans. 5. OPINION We have carefully reviewed the rejections on appeal in light of the arguments of the Appellants and the Examiner. As a result of this review we have reached the conclusion that claims 1-4 lack novelty over Octavio. We have further reached the conclusion that claims 1-28 are not prima facie obvious over Hisanaka. Therefore the rejection of claims 1-4 under § 102 is affirmed, while the rejection of claims 1-28 under § 103 is reversed. Our reasons follow. We are in agreement with the Appellants that the Figures 1 and 2 embodiment of Octavio discloses a plurality of particles, droplets or globules having a thickness dimension t which coat individual portions of the fiber of the fibrous web top sheet 200. Col. 3, l. 54 - col. 4, l. 6 and col. 4, l. 24-27. We agree with Appellants’ arguments that these droplets 210 are randomly distributed and therefore do not define a design. We also note that some of the droplets appear to be on the outer surface of the fluid pervious fibrous web and thus appear to be in position to contact the skin of the wearer. However, the Examiner presents an alternative finding of anticipation on page 4 of the Examiner’s Answer. Octavio further discloses a polymeric film material topsheet 22 having a fibrous web surge layer 25 therebeneath. Col. 15, ll. 22-29. Appellants have argued that the secondary topsheet 25 cannot be considered a surge layer, inasmuch as layer 25 is not a fibrous web. App. Br. 5. However, the above referenced portion of Octavio makes clear that when a polymeric film is used as the topsheet 22, the secondary topsheet 25 can be of a fibrous nature. Octavio further discloses that the Appeal 2010-000185 Application 10/331,823 4 topsheet 22 and the secondary topsheet or surge layer 25 can be bonded together by adhesive bonding. Col. 16, ll. 33-42. We note that the adhesive can be arrayed as a patterned layer or arrayed as lines, spirals or spots. Id. Therefore, this adhesive comprises a series of spaced apart solidified deposits of liquid impermeable material adhered to the liner layer lower surface which does not contact a user’s skin and wherein the adhesive is arrayed in a design. It is our finding that this disclosure of Octavio anticipates Appellants’ claims 1-4. Therefore the rejection of claims 1-4 is sustained. Appellants’ arguments with respect to this rejection are found in the Brief at page 5. Appellants’ arguments are simply that Octavio does not disclose a surge layer or a series of spaced apart solidified deposits as required by claims 1-4. As explained supra this argument is erroneous. Turning to the rejection of claims 1-28 as unpatentable over Hisanaka, we will not affirm this rejection. We are in agreement with Appellants’ argument that the skin protective ingredient of Hisanaka is not a liquid impermeable material that does not contact the user’s skin during use of the article. App. Br. 6. Furthermore, we are in agreement with the Appellants that the Examiner has not provided articulated reasoning with rational underpinnings as to why it would have been obvious to adhere the skin protective ingredient on the lower surface of the upper layer, inasmuch as Hisanaka desires the skin protective ingredient to be applied to the user’s skin during use of the article. Therefore the placement of the skin protective ingredient on the lower surface of the upper layer would not generate a predictable result with respect to application of the ingredient to the skin of the wearer. Appeal 2010-000185 Application 10/331,823 5 Finally, we disagree with the Examiner’s argument that the limitation directed to not contacting the user’s skin in use is entirely functional. In our view, the limitation is at least partially directed to where the deposits are located in the absorbent article. DECISION The rejection of claims 1-4 under 35 U.S.C. § 102 as anticipated by Octavio is affirmed. The rejection of claims 1-28 under 35 U.S.C. § 103 as unpatentable over Hisanaka is reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv) (2007). AFFIRMED-IN-PART nlk KIMBERLY-CLARK WORLDWIDE, INC. Tara Pohlkotte 2300 Winchester Rd. NEENAH WI 54956