Ex Parte Sherry et al

Board of Patent Appeals and Interferences

Sep 10, 2012

10979732 (B.P.A.I. Sep. 10, 2012)

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.
10/979,732 11/02/2004 Alan Edward Sherry 7803CC 4125
27752 7590 09/11/2012
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
CHOI, PETER Y
ART UNIT PAPER NUMBER
1786
MAIL DATE DELIVERY MODE
09/11/2012 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 ALAN EDWARD SHERRY, NICOLA JOHN POLICICCHIO,
CYNTHIA ELAINE CELLA, JEFFREY LAWRENCE FLORA, TOAN
TRINH, and JOSEPH PAUL MORELLI
____________

Appeal 2011-007049
Application 10/979,732
Technology Center 1700
____________

Before BRADLEY R. GARRIS, ANDREW H. METZ and BEVERLY A.
FRANKLIN, Administrative Patent Judges.

METZ, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Appellants appeal under 35 U.S.C. § 134 from the Examiner's adverse
decision finally rejecting claims 1 through 4 and 6 through 22, which are all
the claims remaining in the application.
We have jurisdiction under 35 U.S.C. § 6.

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We AFFIRM.

THE INVENTION
Appellants disclose hard surface cleaning compositions suitable for
removal of and/or prevention of buildup of soils commonly encountered on
floors, walls, counter tops, glass and/or in bathrooms. Spec. 2. The hard
surface cleaning compositions can be used in a pre-moistened wipe. The
wipe substrate can be composed of modified or unmodified naturally
occurring fibers, synthetic fibers or compatible combinations of naturally
occurring and synthetic fibers. Spec. 28, 29. The wipes can consist of one or
more layers including an optional scrub layer for maximum cleaning
efficiency. For pre-moistened wipes that use a single substrate, the substrate
contains fibers comprising some combination of hydrophilic and
hydrophobic fibers. Spec. 31. Various methods for forming suitable fibrous
substrates are useful including non-woven techniques such as
hydroentanglement. Spec. 32. A variety of other techniques for preparing
useful substrates are known. Spec. 33. In a preferred embodiment, the wipe
or cleaning sheet has at least two regions distinguished by basis weight.
Spec. 33. In addition to the regions that differ with respect to weight basis
the wipe/sheet will have substantial macroscopic three-dimensionality. Spec.
34. The pre-moistened wipe is prepared by wetting the substrate with at least
about 1.0 gram of liquid composition per gram of dry substrate. Spec. 34.
Claims 1 and 12, the only independent claims before us for our
consideration, are representative of the claimed invention and are
reproduced below for a more facile understanding of Appellants’ invention.
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1. A wipe comprising: at least one pre-moistened, nonwoven outer
layer of a 100% synthetic substrate, wherein said substrate is
hydroentangled to form said wipe, and wherein said wipe has an
absorbent capacity of from about 2 to about 10 grams of liquid per
gram of said wipe, and further wherein said layer is not pre-
washed; and further, wherein said wipe has at least two regions
that are distinguished by basis weight, a low basis weight region
and a higher basis weight region, wherein the low basis region has
a basis weight that is not more than about 80% of the basis weight
of the higher basis weight region.

12. A wipe comprising: at least one pre-moistened, nonwoven outer
layer of a 100% synthetic substrate, wherein said substrate is
hydroentangled to form said wipe, and wherein said wipe has an
absorbent capacity of at least 10 grams of liquid per gram of said
wipe, and further, wherein said layer is not pre-washed; and
further, wherein said wipe has at least two regions that are
distinguished by basis weight, a low basis weight region and a
higher basis weight region, wherein the low basis region has a
basis weight that is not more than about 80% of the basis weight of
the higher basis weight region.

The references of record which are being relied on by the Examiner as
evidence of obviousness are:
Barby et al. (Barby) 4,448,704 May 15, 1984
Trokhan et al. (Trokhan) 5,534,326 Jul. 9, 1996
Griesbach et al. (Griesbach) 5,587,225 Dec. 24, 1996
Bouchette 6,110,848 Aug. 29, 2000

THE REJECTIONS

Claims 1 through 4, 6, 11 through 14, and 19 through 22 stand
rejected as being unpatentable under 35 U.S.C. § 103(a) as the claimed
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subject matter would have been obvious from the combined disclosures of
Bouchette, Barby, and Trokhan.1
Claims 7 through 10, 15 through 18, 21, and 22 stand rejected
as being unpatentable under 35 U.S.C. § 103(a) as the claimed subject matter
would have been obvious from the combined disclosures of Bouchette,
Barby, Trokhan, and Griesbach.

OPINION
Appellants’ claims have been grouped in two separate groups by the
Examiner and each group has been rejected separately over essentially the
same prior art. The first group of claims is directed to a wipe characterized
solely by the outer layer of the wipe and the second group of claims further
limits or modifies the nature of the fibers that make up the outer layer of the
wipe. Additionally, the second group of claims further limits the outer layer
of the wipe claimed in claims 1 and 11. Appellants have addressed the two
rejections separately in arguments set forth on pages 3 and 4 of their Brief.
The entirety of Appellants’ argument against the first ground of
rejection may be found in a single paragraph on page 3 of their Brief.
Appellants assert that the Examiner committed reversible error by
“combining the cited references with Trokhan.” Appellants observe that the

1 Whether the rejection before us is considered as Bouchette in view of
Barby and Trokhan or Barby or Trokhan in view of the other two references
is merely a matter of presentation with no legal significance. In re Bush, 296
F.2d 491, 496 (CCPA 1961); In re Krammes, 314 F.2d 813, 816-17 (CCPA
1963). We recognize that there may be some cases in which the relevant
factual determinations inhere in such characterization of the references but
this case is not one.
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claimed invention is directed to a pre-moistened wipe and that Trokhan is
directed to paper towels, toilet tissue and facial tissue. Appellants further
observe that “[t]here appears to be no mentioning of pre-moistening in
Trokhan” and thereafter concludes that the claims are patentable over the
combination of the three cited references. None of Appellants’ arguments
are persuasive.
Appellants seem to suggest that the disclosure relating to the towels in
the prior art would not have been relevant to or would not have been
considered by the person of ordinary skill in the art with respect to the
claimed wipes. We disagree. On page 36 of their Specification, Appellants
admit that the prior art “recognizes the use of pre-moistened wipes” and then
discuss examples in the prior art of such wipes including towels as disclosed
in U.S. Patent 4,178,407. Therefore, according to Appellants’ disclosure,
towels are known to be useful as wipes in the prior art. Further, as correctly
observed by the Examiner (Ans. 15) it is improper to attack a rejection on
the grounds of obviousness based on the disclosure of what a single
reference (Trokhan) discloses where, as here, the rejection is founded on
what a combination of references teaches or suggests. We observe that
Appellants do not allege that Bouchette and Barby fail to disclose pre-
moistening. We note that Bouchette discloses that the hydroentangled web
therein disclosed is useful for preparing wet wipes (col. 4, ll. 14-16) and
Barby discloses wet impregnated type wipes (col. 8, ll. 22-32).
To the extent Appellants are arguing that Trokhan is somehow
directed to “non-analogous” art, we reject that argument. Whether a
reference is “analogous” prior art is a question of fact. A reference qualifies
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as “analogous” prior art when the prior art is either: (1) from the same field
or endeavor, regardless of the problem addressed, or, (2) if not from the
same field or endeavor the reference is reasonably pertinent to the particular
problem faced by the inventors. Appellants have neither established nor even
addressed the question of whether Trokhan is from the same field of
endeavor as Appellants’ field of endeavor or whether Trokhan is reasonably
pertinent to the problem addressed by Appellants. We find Trokhan to be
“analogous” prior art because it is from the same field of endeavor as
Appellants field of endeavor.
Appellants argue in two paragraphs on pages 3 and 4 of their Brief
that the second ground of rejection should be reversed because the Examiner
has failed to make out a prima facie case of obviousness for the claimed
subject matter. We disagree. In the first instance, contrary to Appellants’
argument that at page 10, third paragraph of his Answer the Examiner
“admits the prior art is silent as to the exact type of bicomponent fiber” (Br.
4) we find no such admission. Rather, the third paragraph of page 10 of the
Examiner’s Answer is a discussion of claim 13 and the optimum wetness
disclosed in the prior art for pre-moistened wipes. Further, none of
Appellants’ claims are limited to a wipe requiring a bicomponent fiber of
any type. Rather, claims 7 and 15 further describe the useful fibers recited in
claims 1 and 12, respectively, from which the claimed synthetic substrate
may be prepared but neither require nor limit the claims to any single,
particular type of fiber. As correctly observed by the Examiner, Bouchette
discloses that monocomponent fibers, bicomponent fibers and mixtures
thereof, in general, are useful for preparing synthetic substrates as disclosed
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by Bouchette and claimed by Appellants. Griesbach is relied on by the
Examiner to show that the specific types of fibers set forth in certain
dependent claims were well-known in the art. We find no error in the
Examiner’s rejection or his reliance on Griesbach. We find Griesbach to be
evidence that the specific types of monocomponent and bicomponent fibers
generally described by Bouchette and claimed by Appellants would have
been understood by a person of ordinary skill in the art to include the
specific fibers of Griesbach and would have been expected to be useful for
preparing Bouchette’s wet wipes.
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)(1)(iv).
AFFIRMED

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