Ex Parte Qin et al

Patent Trial and Appeal Board

Jun 7, 2018

13718709 (P.T.A.B. Jun. 7, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
131718,709 12/18/2012
23556 7590 06/11/2018
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
NEENAH, WI 54956
FIRST NAMED INVENTOR
Jian Qin
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.
64778291 US03 7582
EXAMINER
VAN SELL, NATHAN L
ART UNIT PAPER NUMBER
1783
NOTIFICATION DATE DELIVERY MODE
06/11/2018 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):
Kimberly dark. docketing@kcc.com
Cindy.M.Trudell@kcc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JIAN QIN, FRANCIS P. ABUTO, DEBORAH J. CALEWARTS,
KEYUR M. DESAI, YVETTE L. HAMMONDS, JEFFREY F. JURENA,
CANDACE D. KRAUTKRAMER, ADRIENNE R. LOYD, SUSAN E.
SHAWVER, and DONALD E. WALDROUP
Appeal2017-008519
Application 13/718,709
Technology Center 1700
Before ROMULO H. DELMENDO, BEYERL YA. FRANKLIN, and
LILAN REN, Administrative Patent Judges.
DELMENDO, Administrative Patent Judge.
DECISION ON APPEAL
The Applicant (hereinafter "Appellant") 1 appeals under 35 U.S.C.
§ 134(a) from the Primary Examiner's final decision to reject claims 1-20.2
We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 The Appellant is the Applicant, "Kimberly-Clark Worldwide, Inc.," which,
according to the Brief, is the real party in interest (Appeal Brief filed
December 5, 2016, hereinafter "Br.," 1).
2 Br. 2-7; Final Office Action entered July 1, 2016, hereinafter "Final Act.,"
2-9; Examiner's Answer entered March 6, 2017, hereinafter "Ans.," 2-13.
Appeal2017-008519
Application 13/718,709
I. BACKGROUND
The subject matter on appeal relates to a nonwoven3 substrate on
which is provided an additive composition to improve various properties-
e.g., enhanced tactile feel such as softness (Specification filed December 18,
2012, hereinafter "Spec.," 2, 11. 18-24; 32., 11. 8-12). Representative claim 1
is reproduced from the Claims Appendix to the Appeal Brief (Br. 8;
emphases and some indentations added), as follows:
1. A nonwoven substrate comprising:
a fibrous web defining a surface; and
a layer of an additive composition;
wherein said additive composition is frothed, uniformly
distributed onto a dryer surface using a parabolic froth
applicator, and bonded to the fibrous web surface through a
creping process; and
wherein said nonwoven substrate demonstrates
improvements selected from enhanced tactile feel, enhanced
printing, a decrease in hysteresis, an increase in bulk, an increase
in elasticity/extensibility, an increase in retractability, a
reduction in rugosities and combinations thereof when compared
to an untreated substrate.
II. REJECTION ON APPEAL
On appeal, claims 1-20 stand rejected under 35 U.S.C. § 103(a) (pre-
AIA) as unpatentable over Monda et al. 4 (hereinafter "Monda") in view of
Braverman et al. 5 (hereinafter "Braverman"), Luccio et al. 6 (hereinafter
3 According to the inventors, "nonwovens are meant to include facial tissue,
bath tissue, paper towels, spunbond, diaper or feminine care body side liners
and outer covers, napkins (such as for hands and face) and the like" (id. at
20, 11. 26-28).
4 US 2008/0295985 Al, published December 4, 2008.
5 US 2006/0003150 Al, published January 5, 2006.
6 US 2002/0040210 Al, published April 4, 2002.
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Application 13/718,709
"Luccio"), and Gaston Systems: CFS® System, retrieved from
https://web.archive.org/web/2008051015424 7 /www.gastonsystems.com/syst
em/system.html (May 10, 2008) (hereinafter "Gaston Systems") (Ans. 2-13;
Final Act. 2-9).
III. DISCUSSION
The Appellant argues claims 1-20 together (Br. 2-7). Therefore, we
confine our discussion to claim 1, which we select as representative pursuant
to 37 C.F.R. § 41.37(c)(l)(iv). As provided by this rule, claims 2-19 stand
or fall with claim 1.
The Examiner finds that Monda describes a treated nonwoven
substrate that satisfies most of the limitations recited in claim 1 (Ans. 2--4 ).
Specifically, the Examiner finds that Moncla's substrate is made by spraying
a frothed additive composition onto a heated dryer drum and then bonding
the composition onto a paper substrate using a creping process rather than by
applying the additive composition uniformly "using a parabolic froth
applicator" as specified in the claim and then creping (id. at 4, 9). Relying
on Braverman and Gaston Systems, however, the Examiner concludes that a
nonwoven substrate made by using a parabolic froth applicator to apply the
frothed additive composition uniformly on the dryer surface would have
been obvious to a person of ordinary skill in the art in view of the collective
teachings found in the prior art (id. at 5---6, 9-10). Regarding the
"improvements" limitations recited in claim 1, the Examiner finds that
"these limitations are functional language that ... describes how the article
functions in its final state" and that "[ s ]uch limitations are met if the applied
prior art is capable [of] functioning [in the] the claim[ ed manner]" (id. at 6-
7). In the Examiner's view, "the combination of Monda as modified by
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Application 13/718,709
Braverman, Luccio, and Gaston Systems teaches or otherwise renders
obvious the structures and materials/composition of the instant claims" and
"[t]herefore, the combination ... is deemed capable of functioning in the
[manner] per functional limitations of instant claims" (id. at 7).
The Appellant contends that Monda describes no other means for
applying the additive composition other than by spraying and that the other
prior art references do not cure this deficiency in Monda relative to claim 1
(Br. 3--4). The Appellant argues that "[t]here is no disclosure, teaching, or
suggestion in Gaston or any of the other references that Gaston's applicator
can be used to apply foam to a dryer surface" and that "[ t ]he cited art
provides no basis for concluding that a parabolic applicator can be
substituted for a sprayer" (id. at 4). According to the Appellant, Gaston's
machine is designed for substrates-not a dryer surface, which cannot be fed
through Gaston's machine (id. at 5). Relying on "softness results" reported
in Table 15 in the disclosure of parent Application 13/330,440, filed
December 19, 2011 (US 8,916,012 B2 issued December 23, 2014;
hereinafter "'012 Patent"), the Appellant argues that "facial tissue with the
frothed HYPOD surface treatment is significantly softer than the tissue
having the sprayed HYPOD surface treatment" (id. at 5---6). 7
The Appellant's arguments do not identify any reversible error in the
Examiner's rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
7 Both the '012 Patent and the current Specification describe HYPOD
8510®, which is used in the '012 Patent's working examples, as an aqueous
dispersion of polyethylene-octene copolymer and a copolymer of ethylene
and acrylic acid ('012 Patent col. 7, 11. 40--44; Spec. 12, 11. 13-15).
Furthermore, both the '012 Patent and the current Specification describe
"softness" as related to tactile properties ('012 Patent col. 31, 11. 3-5; Spec.
32, 11. 8-12, and 38, 11. 12-14).
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Application 13/718,709
Monda describes cellulose-based articles (e.g., those based on
nonwoven fibers) having certain improved properties such as improved
softness (Monda i-fi-f 14--15, 108).8 Monda teaches that the improved
properties can be achieved by spraying a frothed additive composition,
which contains an aqueous dispersion of an ethylene and/or propylene-based
thermoplastic polymer, at least one polymeric stabilizing agent, and water,
onto a dryer drum and then creping the resulting web from the dryer drum
onto the paper substrate (id. i-fi-f 15, 85, 108, 110). Although Monda teaches
spraying, the reference does not indicate that application techniques other
than spraying cannot be used (id.). According to Monda, softness is
imparted to the substrate by using a stabilizing agent that includes a
surfactant package having ethylene-acrylic acid or ethylene-methacrylic
copolymers in an amount of from about 10 to about 50% by weight of the
base polymer (id. i1 60).
Braverman teaches treating a hydrophobic substrate (e.g., nonwoven
fabrics, films, and foams) with a composition that comprises, e.g., an
ethoxylated hydrogenated castor oil, sorbitan monooleate, or a mixture
thereof to improve ink adhesion (Braverman i-fi-134--35, 61, Abstract).
According to Braverman, "foaming is a desirable process because of its
efficiency, ease of operation, cleanliness, and good control over process
8 Claim 1 recites "improvements selected from enhanced tactile feel,
enhanced printing ... and combinations thereof' (Br. 8). It appears that the
inventors intended this language to specify a Markush group in which a
treated nonwoven substrate having one or more of the recited characteristics
would satisfy the claim limitation. That is, it appears that the inventors
intended to use the phrase "selected from the group consisting of'
sanctioned in Ex parte Markush, 1925 Dec. Comm'r Pat. 126, 127 (1924).
M.P.E.P. § 706.03(y).
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Application 13/718,709
parameters" and refers to foam equipment with a parabolic foam applicator
manufactured by Gaston Systems, Inc. (id. i-f 60).
Gaston Systems, which is a one-page brochure, discloses a foam
generator and controller and an applicator "for accurately applying foamed
water soluble or water dispersible chemicals at very low moisture levels onto
or into substrates such as textiles, carpet, nonwovens, paper, and others."
According to the document, the applicator's "unique parabolic design
assures uniform application across the width without streaks."
Given the collective teachings found in these references, we agree
with the Examiner (Ans. 6) that a person having ordinary skill in the art
would have been prompted to implement Gaston System's foam application
technique using a parabolic foam applicator in Moncla's coating and creping
process with a reasonable expectation of achieving accurate and uniform
application of the foam onto the drum dryer's surface. KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007) ("[I]f 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.").
We find no merit in the Appellant's unsupported contention that the
Gaston Systems technique is limited to substrates that are fed into the
applicator and that the parabolic foam applicator technique cannot be
implemented-through nothing more than routine engineering
modifications-for a substrate in the form of a drum dryer. As the Examiner
explains (Ans. 11-12), "[t]he test for obviousness is not whether the features
of a secondary reference may be bodily incorporated into the structure of the
primary reference." In re Keller, 642 F.2d 413, 425 (CCPA 1981). "Rather,
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Application 13/718,709
the test is what the combined teachings of the references would have
suggested to those of ordinary skill in the art." Id. Here, as the Examiner
points out (Ans. 13), the Appellant offers no technical explanation why a
parabolic foam applicator is not technically feasible in Monda.
The Appellant's argument that Table 15 in the parent '012 Patent,
which states that "facial tissue with the frothed HYPOD surface treatment is
significantly softer than the tissue having the sprayed HYPOD surface
treatment" is unpersuasive for the reason given by the Examiner (Ans. 6-7,
12-13). Moreover, Monda itself teaches a product with improved softness,
as we found above, and the Appellant offers no explanation as to how the
data in Table 15 demonstrate tests results that would have been considered
sufficiently comprehensive and unexpected over Monda sufficient to
support the broad scope of claim 1.
For these reasons, we uphold the Examiner's rejection.
IV. SUMMARY
The Examiner's rejection under 35 U.S.C. § 103(a) of claims 1-20 as
unpatentable over Monda in view of Braverman, Luccio, and Gaston
Systems is sustained. Therefore, the Examiner's final decision to reject
claims 1-20 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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