Ex Parte Qin et al

Patent Trial and Appeal Board

Aug 2, 2016

13445754 (P.T.A.B. Aug. 2, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/445,754 04/12/2012
23556 7590 08/03/2016
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.
64784657US01 9742
EXAMINER
PALLAY,MICHAELB
ART UNIT PAPER NUMBER
1617
MAILDATE DELIVERY MODE
08/03/2016 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 JIAN QIN, DEBORAH CALEWARTS, CHARLES W.
COLMAN, JENNY L. DAY, and CATHLEEN M. UTTECHT
Appeal2015-001689
Application 13/445,754
Technology Center 1600
Before DONALD E. ADAMS, JOHN G. NEW, and
RICHARD J. SMITH, Administrative Patent Judges.
ADAMS, Administrative Patent Judge.
DECISION ON APPEAL 1
This appeal under 35 U.S.C. § 134(a) involves claims 1-12 (Br. 1).
Examiner entered rejections under 35 U.S.C. § 103(a). We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF THE CASE
The claims are directed to an open-cell foam (see Appellants' claim
1 ). Claim 1 is representative and reproduced in the Claims Appendix of
Appellants' Brief.
1 Appellants identify the Real Party in Interest as "Kimberly-Clark
Worldwide, Inc." (Br. 1.)
Appeal2015-001689
Application 13/445,754
Claims 1-5 and 7-12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Achille2 and Homer. 3
Claims 1-12 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Achille, Homer, and Toonen.4
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
FACTUAL FINDINGS (FF)
FF 1. "Achille discloses superabsorbent polymer blend compositions for
preparation of foams for absorbent articles" (Final Rej. 3, citing Achille,
Abstract).
FF 2. Achille discloses "open cell" foam (Achille i-f 46; Ans. 3).
FF 3. Achille discloses a composition comprising "PRIMACQR[®J [(a
commercialy available copolymer of ethylene-acrylic acid)], polyethylene,
and [] superabsorbent polymer particles" (Final Rej. 3, citing Achille i-f 58;
Achille, Table 4 and Appellants' Spec. 7: 22-25).
FF 4. Achille discloses a foam "having a moisture content ranging from
0.2 to 4 weight percent ... of the weight of the ... composition" (Achille
i-f 44; Final Rej. 3; Ans. 2 ("the composition of the prior art contains water
and can be said to be an aqueous-based polymer dispersion, in that the
product is a composition which is a mixture (i.e., dispersion) of polymer and
[] water"); see also Ans. 4).
2 Achille, US 2002/0039869 Al, published Apr. 4, 2002.
3 Homer, JR. et al., US 2003/0032351 Al, published Feb. 13, 2003.
4 Toonen et al., US 2008/0050554 Al, published Feb. 28, 2008.
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Appeal2015-001689
Application 13/445,754
FF 5. Appellants disclose an "open-celled foam[] hav[ing] uniform pore
structure, superabsorbent containment, absorbent core integrity, (wet and
dry) and dry softness" (Spec. 5: 29- 6: 1; Ans. 4 ("pores are indeed part of
the [foam] structure ... as such terms are used" in Appellants'
Specification)).
FF 6. Examiner finds that Achille's "superabsorbent particulates are
uniformly distributed on the skin and throughout the cell structure of the
foam (i.e., including within the voids and pores of the foam)" (Final Rej. 4,
citing Achille i-f 75; Ans. 4).
FF 7. Examiner finds that although Achille discloses an open-cell foam
comprising a stabilizer, "Achille does not specifically disclose ... about 5%
to about 15% of a foaming composition [that] compris[ es] at least a foaming
agent and a stabilizing agent" and relies on Homer to suggest foams that
comprise "for example ammonium stearate and sodium lauryl sulfate,
wherein one or more surfactants can be employed in the composition to
promote the formation of foam and to maintain the foam structure" (Final
Rej. 4, citing Homer i-f 20).
FF 8. Examiner finds that Homer discloses a composition comprising
"between about 0.5 and about 10 wt. % foam supporting surfactant" (Final
Rej. 4, citing Homer i-f 16).
FF 9. Examiner finds that the combination of Achille and Homer does "not
disclose a gelling agent such as hydroxypropyl cellulose" and relies on
T oonen to make up for this deficiency in the combination of Achille and
Homer (Ans. 9).
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Appeal2015-001689
Application 13/445,754
ANALYSIS
The rejection over the combination of Achille and Horner:
Based on the combination of Achille and Homer, Examiner concludes
that, at the time Appellants' invention was made, it would have been prima
facie obvious to include Homer's foaming composition "as the stabilizer in"
Achille's composition (Final Rej. 4).
We recognize, but are not persuaded by, Appellants' contentions that:
(1) the combination of Achille and Homer fails to suggest "an aqueous-
based polymer dispersion including a polyethylene copolymer and an
ethylene-acrylic acid copolymer" and (2) "Achille [] teaches away from
using water in preparing its extrudable composition" (Br. 2-3). As
Examiner explains, Appellants' claim 1 is "directed to a foam composition
rather than [] a method of making a foam composition," "[t]hus, whether
water is added to the composition before or after extrusion ... is not
determinative of patentability" (Ans. 2; see FF 1--4). In this regard, we
agree with Examiner's rationale that "the composition [suggested by] the
prior art contains water and can be said to be an aqueous-based polymer
dispersion, in that the product is a composition which is a mixture (i.e.,
dispersion) of polymer and[] water" (Ans. 2; see also id. at 2--4; see FF 4).
We recognize, but are not persuaded by, Appellants' contention that
Homer "does not disclose, teach, or suggest an aqueous-based polymer
dispersion" and, therefore, does not make up for Appellants' alleged
deficiency in Achille (Br. 3). As Examiner explains, Homer was not relied
upon to suggest an aqueous-based polymer dispersion, which, for the
reasons discussed above, is disclosed by Achille (Ans. 4).
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Appeal2015-001689
Application 13/445,754
Appellants disclose an "open-celled foam[] hav[ing] uniform pore
structure, superabsorbent containment, absorbent core integrity, (wet and
dry) and dry softness" (FF 5). As Examiner explains, pores are part of the
foam structure as it is described by Appellants (Ans. 4; FF 5). Therefore, we
recognize, but are not persuaded by, Appellants' contention that "[ v ]oids and
pores are not part of the [foam] structure" and, therefore, Achille' s
"superabsorbent particles [that] are distributed on the skin (surface) of the
foam, and throughout the foam's cell structure" are not "within the voids and
pores of the open-celled foam," as required by Appellants' claim 1 (Br. 3--4
(emphasis added)). For the foregoing reasons we are not persuaded by
Appellants' contention that Homer, which is not relied upon to suggest the
distribution of superabsorbent particles in a foam structure, fails to make up
for Appellants' alleged deficiency in Achille (Br. 4).
The rejection over the combination of Achille, Horner, and Toonen:
Based on the combination of Achille, Homer, and Toonen, Examiner
concludes that, at the time Appellants' invention was made, it would have
been prima facie obvious to include Toonen's hydroxypropyl cellulose in the
composition suggested by the combination of Achille and Homer (Final Rej.
9).
Having found no deficiency in Examiner's combination of Achille
and Homer, as it relates to Appellants' claiml, we are not persuaded by
Appellants' contention that Toonen fails to make up for Appellants' alleged
deficiencies in the combination of Achille and Homer (Br. 4).
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Appeal2015-001689
Application 13/445,754
CONCLUSION OF LAW
The preponderance of evidence relied upon by Examiner supports a
conclusion of obviousness.
The rejection of claim 1 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Achille and Homer is affirmed. Claims 2-5 and 7-
12 are not separately argued and fall with claim 1.
The rejection of claim 1 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Achille, Homer, and Toonen is affirmed. Claims 2-
12 are not separately argued and fall with claim 1.
TIME PERIOD FOR RESPONSE
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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