Ex Parte Stern et al

Board of Patent Appeals and Interferences

Nov 16, 2010

09558329 (B.P.A.I. Nov. 16, 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.
09/558,329 04/25/2000 Randolph A. Stern STAN-09RE 9722
26875 7590 11/17/2010
WOOD, HERRON & EVANS, LLP
2700 CAREW TOWER
441 VINE STREET
CINCINNATI, OH 45202
EXAMINER
JUSKA, CHERYL ANN
ART UNIT PAPER NUMBER
1798
MAIL DATE DELIVERY MODE
11/17/2010 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 RANDOLPH A. STERN and MICHAEL N. BYLES
____________________

Appeal 2010-011528
Reissue Application 09/558,329
Technology Center 1700
____________________

Before PETER F. KRATZ, CATHERINE Q. TIMM, and LINDA M.
GAUDETTE, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL1
I. STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 1-87, all the claims pending in the reissue
application. We have jurisdiction under 35 U.S.C. § 6(b).

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.

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We AFFIRM.
Appellants’ invention relates to a stitch bonded facing fabric and fluid
retaining fabrics, such as those used in incontinent pads. All of the claims
require a plurality of stitch bonding yarns repeatedly extending through a felt
layer to form a yarn face on the felt surface.
This Board panel previously decided an appeal involving this
application (see Decision of Jan. 19, 2005 in Appeal No. 2005-0019). In
that Decision, we reversed the Examiner’s decision to reject claims 30-87
for non-enablement under 35 U.S.C. § 112, ¶ 1. However, we upheld the
Examiner’s rejections based upon prior art. During further prosecution of
the application, Appellants amended each of the independent claims to
further require that each yarn face be “effectively continuous such that the
corresponding web surface is not generally exposed at the associated yarn
face.” Claim 58 illustrates the invention now on appeal:
58. A stitch bonded facing fabric comprising:
a first layer of felt having hydrophobic properties and
further having an outer surface; and
a plurality of stitch bonding yarns repeatedly extending
though the first layer of felt with yarn segments extending
across the outer surface of the layer of felt, such that the yarn
segments extending across the felt layer outer surface cooperate
to form a yarn face above the felt layer outer surface;
wherein the yarn face is effectively continuous such that
the outer surface of the layer of felt is not generally exposed at
the yarn face.

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The Examiner maintains all of the prior art rejections we previously
reviewed, and Appellants again seek review of those rejections. The
rejections to be reviewed are:
1. The rejection of claims 65 and 67-69 under 35 U.S.C. § 102(b) as
anticipated by U.S. Patent No. 4,025,129 to Sternlieb;
2. The rejection of claims 30-37 and 51-64 under 35 U.S.C. § 102(b)
as anticipated by U.S. Patent No. 4,181,514 to Lefkowitz;
3. The rejection of claims 1, 3-9, 12, 14-20, 30, 32-38, 51, 53-56, 58,
61-66, 68, and 69 under 35 U.S.C. § 102(b) as anticipated by U.S. Patent
No. 4,675,226 to Ott;
4. The rejection of claims 30, 32-36, 39, 41, 42, 46-51, 53-56, 65, 68,
69, 80, 83, 84, 86, and 87 under 35 U.S.C. § 102(b) as anticipated by U.S.
Patent No. 5,356,402 to Gillies;
5. The rejection of claims 2, 10, 11, 13, 21, 22, 31, 52, 57, 60, and 67
under 35 U.S.C. § 103(a) as unpatentable over Ott;
6. The rejection of claims 1, 3-12, 14-23, 26-29, 37, 38, 43, 57, 58,
61-64, 66, 70, 71, 73, 74, 76-79, and 81 under 35 U.S.C. § 103(a) as
unpatentable over Gillies in view of Ott;
7. The rejection of claim 25 under 35 U.S.C. § 103(a) as unpatentable
over Gillies in view of Ott and in further view of Lefkowitz and U.S. Patent
No. 4,128,686 to Kyle;
8. The rejection of claims 40 and 82 under 35 U.S.C. § 103(a) as
unpatentable over Gillies in view of European Patent 261,904 to Taylor;
9. The rejection of claims 24 and 72 under 35 U.S.C. § 103(a) as
unpatentable over Gillies in view of Ott and Taylor.
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10. The rejection of claims 31, 44, 45, 52, 67, and 85 under 35 U.S.C.
§ 103(a) as unpatentable over Gillies in view of Sternlieb.
11. The rejection of claims 2, 13, 59, 60, and 75 under 35 U.S.C.
§ 103(a) as unpatentable over Gillies in view of Ott and Sternlieb; and
12. The rejection of claims 1-23, 25-39, 41-71, 73-81, and 83-87
under 35 U.S.C. § 103(a) as unpatentable over Kyle in view of Gillies, Ott
and/or Sternlieb.
13. The rejection of claims 24, 40, 72, and 82 under 35 U.S.C.
§ 103(a) as unpatentable over Kyle in view of Gillies, Ott, and/or Sternlieb,
and further in view of Taylor.
II. DISCUSSION
For each of the rejections based on Sternlieb, Lefkowitz, Ott, or
Gillies, alone, Appellants contend that the cited reference does not describe a
felt, and/or does not teach a yarn face that is “effectively continuous such
that the corresponding web surface is not generally exposed at the associated
yarn face” as required by the independent claims. In order to resolve the
issue of whether the references teach the required felt and yarn face, we
must construe the relevant clam language.
Appellants rely upon two declarations from Declarant E. Linwood
Wright (Wright Decl. and Supp. Wright Decl.) to provide evidence to
support their position. Mr. Wright has over forty-nine years of textile
experience with Dan River Inc. of Danville, Virginia, a textile supplier to the
assignee of the reissue application (Wright Decl. ¶¶ 3-6). In assessing the
probative value of declaratory evidence, one must consider the nature of the
matter sought to be established as well as the strength of the opposing
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evidence. In re Oelrich, 579 F.2d 86, 91 (CCPA 1978). We find Mr.
Wright to be well qualified to provide his expert opinion regarding the
knowledge of those within the textile arts, and we have considered his
opinions in weighing the evidence as a whole.
A. THE MEANING OF “FELT”
Wright declares that “felt” is understood in the art to mean “a
nonwoven sheet of matted material of wool, hair, fur, or manufactured fibers
(e.g., polyester, polypropylene, or rayon) made by a combination of
mechanical and chemical action, pressure, moisture, and heat, such matted
material has structural integrity, i.e., tensile strength, in all directions.”
(Wright Decl. ¶ 12.)
The Examiner, however, finds that the Specification lacks an explicit
definition of “felt,” and interprets “felt web” in the broad sense as “any
nonwoven, web, or batting comprising discontinuous or staple fibers.” (Ans.
4 and 13.)
During examination, "claims . . . are to be given their broadest
reasonable interpretation consistent with the specification, and . . . claim
language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art." In re Am. Acad. of Sci. Tech.
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
As correctly found by the Examiner, and not disputed by Appellants,
Appellants’ Specification lacks an explicit definition for “felt” or “felt web.”
(See generally Spec.; see also Br. 25-27; Reply Br. 2-3) Appellants’
Specification uses the word “felt” to describe a layer of nonwoven polymeric
fibers underlying a knit or woven facing fabric layer conventionally used in
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an incontinent pad (Spec., col. 1, ll. 13-21; col. 2, ll. 37-39; col. 3, l. 52).
The felt layer absorbs liquid and provides rigidity to the pad (id.).
Appellants improve the conventional pad by replacing the knit or woven
facing fabric layer of the prior art with a stitch bonded yarn face (Spec., col.
1, ll. 44-47). Those stitch bonded yarns hold the layers 14, 16 of the felt
web 12 together as well as define top and bottom yarn faces without
interfering with the absorbency or structural rigidity of the felt web (Spec.,
col. 1, ll. 47-58; col. 2, ll. 34-37; Figs. 2-3).
We determine that, interpreted as broadly as is reasonable and
consistent with the Specification as it would be interpreted by the ordinary
artisan, the term “felt” refers to the type of nonwoven material normally
found underlying a facing layer in an incontinence pad, and that functions to
retain liquids within the pad, i.e., a nonwoven layer of matted or entangled
fibers. The Specification provides some support for interpreting the claim
term “felt” as a material that provides some structural rigidity to the pad.
However, the Declarant’s opinion testimony is not persuasively supported in
so far as the requirement for structural integrity in all directions. A
declarant’s opinion testimony must be factually supported to be probative.
In re Altenpohl, 500 F.2d 1151, 1158 (CCPA 1974). Therefore, we adopt a
definition of “felt” in which the matted nonwoven has enough structural
integrity to provide some structural rigidity as disclosed in the Specification.
B. MEANING OF “EFFECTIVELY CONTINUOUS SUCH THAT THE
CORRESPONDING WEB SURFACE IS NOT GENERALLY EXPOSED”
Turning to the claim language “wherein each yarn face is effectively
continuous such that the corresponding web surface is not generally exposed
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at the associated yarn face,” the question is: To what extent do “effectively
continuous” and “not generally exposed” limit the structure of the yarn face?
The Examiner determines that the limitation is a relative, subjective
description of the yarn face (Ans. 9). The Examiner further finds little
guidance in the Specification for determining what yarn spacing qualifies as
“effectively continuous such that the corresponding web surface is not
generally exposed at the associated yarn face” (Ans. 10).
Appellants contend that, contrary to the Examiner’s determination, the
added claim language is not too subjective, and the Examiner has failed to
properly consider the new claim limitation (Br. 18-19). According to
Appellants, “effectively” and “generally” sufficiently guide one of ordinary
skill in the art to understand the metes and bounds of the invention (Br. 19).
The relevant portion of the Specification relied upon by both the
Examiner and Appellants for their respective positions reads:
It will be appreciated that yarn segments 18' and 18" . . . extend
across the surfaces 20 and 22, and are of sufficient density, that
yarn segments 18' cooperate to define a top yarn face 24 of
fabric 10 above web upper surface 20, and yarn segments 18"
cooperate to define a bottom yarn face 26 of fabric 10 below
web lower surface 22. Faces 24 and 26 are effectively
continuous such that web 12 is not exposed thereat, although
small gaps or interstices (as at 28) between adjacent yarn
segments 18' or 18" may allow viewing of felt surface 20 or 22
upon close inspection.
(Spec., col. 2, ll. 59-63 (emphasis added); Br. 22-23; Ans. 9-10).
Figures 3 and 4 depicts the “small gaps” or “interstices” formed when
the yarn faces are knitted in flat stitch construction across the web upper
surface 20 with underlaps at 30 (Fig. 3) and overlaps at 32 (Fig. 4) using
conventional Malipol-type machines (Spec., col. 2, l. 66 to col. 3, l. 5). But
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the interstices are greatly exaggerated in these figures (Spec., col. 2, ll. 63-
64).
The Wright Declaration defines “effectively continuous” as meaning
that “the felt web surface is ‘not generally exposed,’ i.e., not readily
viewable through the yarn face without magnification and not readily felt.”
(Wright Decl. ¶ 10).
We agree with Appellants that the Specification provides some
guidance as to the meaning of the claim limitation. The language of the
claim itself defines the meaning of “effectively continuous,” i.e., it defines
“effectively continuous” in terms of outer felt surface exposure, which is
said to be “not generally exposed.” The language of the Specification is
almost identical to that of the claim except that the Specification does not
use the broadening term “generally” before exposed. From a reading of the
Specification “generally” appears to encompass the “small gaps” and
“interstices” between adjacent yarn segments that may allow viewing of the
felt surface upon close inspection, and based upon our weighing of the
evidence as a whole we interpret the claim to give “generally” that meaning.
C. ANTICIPATION BY STERNLIEB
With respect to the rejection for anticipation of claims 65 and 67-69
by Sternlieb, Appellants focus their arguments on claim 65. Therefore, we
will do the same. The relevant question is: Have Appellants identified an
error in the Examiner’s finding that Sternlieb describes a stitch bonding
facing fabric having a “felt” layer and a yarn face that is “effectively
continuous such that the outer surface of the layer of felt is not generally
exposed at the yarn face” as required by claim 65?
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Sternlieb describes supplying a one-eighth to one-half inch thick web
1 of cardable fibers in unbonded, uncompacted condition from a web feed
roller 2 to guide rolls 4 and onto a conveyor 6 to a scrim zone 5 (Sternlieb,
col. 2, ll. 20-40; Fig. 1). The fibers within the web are one to two inches in
length, intermingled, and non-parallel with each other (Sternlieb, col. 2, ll.
27-28).
The Wright Declaration acknowledges that Sternlieb’s fibers are
intermingled and non-parallel (Wright Decl. ¶ 13).
Based on the evidence as a whole, we agree with the Examiner that
Sternlieb describes a “felt” layer as claimed (Ans. 14). Sternlieb’s one-
eighth to one-half inch web of intermingled fibers is a nonwoven web of
matted (entangled) fibers. Such a web of matted fibers must also have
enough structural integrity to allow it to be unrolled and conveyed to a scrim
zone. The evidence of record indicates that this is enough structural
integrity to qualify it as a “felt” within the meaning of the incontinence pad
art. As stated by the Examiner, the intermingling of fibers to form
Sternlieb’s web would inherently produce at least some matting and
structural integrity for subsequent processing (Ans. 14).
While Wright declares that “[t]o one of ordinary skill in the art, these
layers of unmatted carded fibers and of woven fabric are not felts," neither
the Wright Declaration nor Appellants provide any convincing evidence
supporting this statement. Particularly, Appellants provide no convincing
evidence to overcome the Examiner’s reasonable conclusion that matting
(fiber entanglement) and structural integrity would inherently be present in
Sternlieb’s web 1. Nor does Wright, or Appellants, provide any evidence
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that “felts” are understood within the incontinence pad art to have any
specific level of matting or strength that is higher than that present in
Sternlieb’s web.
With respect to the continuous nature of the yarn face, according to
Appellants, the Wright Declaration confirms that “it is abundantly clear to
one skilled in the art that Sternlieb fails to teach, disclose or otherwise
suggest any yarn face as recited in Applicants’ claims.” (Br. 30, citing
Wright Decl. ¶ 11).
The Examiner responds that the quantitative values of stitch density,
yarn denier, etc. taught by the cited prior art meet the relative degree of
exposure claimed by Appellants (Ans. 10).
As pointed out by the Examiner, Sternlieb teaches a yarn face having
a stitch density of about 2 ounces per square yard (osy), yarn sizes, of 16-24
singles, and about 12 gauge, 12 stitches per inch (Sternlieb, col. 3, ll. 28-31;
Ans. 10).
The Wright Declaration points to Figure 7 of Sternlieb in support of
the argument that the yarn face of Sternlieb is not “effectively continuous”
as required by the claims. However, there is no evidence that Figure 7
depicts the stitching to scale.
The stitching density is very specifically disclosed by Sternlieb.
Neither the Brief, nor the Wright Declaration, points to any specific
evidence refuting the Examiner’s reasonable conclusion that the stitching
density specifically articulated by Sternlieb would not be “effectively
continuous such that the outer surface of the layer of felt is not generally
exposed,” i.e., that the yarn face would have more than small gaps and
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interstices that would allow viewing of the felt surface upon close
inspection, at the yarn face as required by claim 65.
We cannot say that Appellants have identified an error in the
Examiner’s finding that Sternlieb describes a stitch bonding facing fabric
having a “felt” layer and a yarn face that is “effectively continuous such that
the outer surface of the layer of felt is not generally exposed at the yarn
face” as required by claim 65. We, therefore, sustain the rejection of claims
65 and 67-69 as anticipated by Sternlieb.
D. ANTICIPATION BY LEFKOWITZ
With respect to the anticipation rejection of claims 30-37 and 51-64
by Lefkowitz, Appellants do not argue the claims separately. We select
claim 30 as representative. The question is: Does the evidence support the
Examiner’s finding that Lefkowitz describes a stitch bonded facing fabric
including a felt web and an effectively continuous yarn face as claimed?
Lefkowitz describes a filter structure including a batt of relatively
brittle fibers stitch knitted with metallic monofilament, metallic yarns, or
glass yarns (Lefkowitz, col. 2, ll. 15-23 and ll. 55-60). Example I describes
a filter material including a batt of two layers of needled fiberglass stitch
knitted with 304 stainless steel monofilament (Lefkowitz, col. 7, ll. 15-26)
Wright declares that “[t]o one skilled in the art, a batt of relatively
brittle, unmatted fibers is not a felt.” (Wright Decl. ¶ 13.)
The Examiner finds that Lefkowitz describes matted fibers (e.g.,
needle-punched) with at least sufficient structural integrity to pass through a
stitchbonding machine (Ans. 14). According to the Examiner, this
constitutes a felt.
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Appellants provide no convincing evidence that the needle-punched
batt of Lefkowitz is unmatted.
The evidence of record supports the Examiner’s determination that
Lefkowitz describes a “felt web,” i.e., a matted nonwoven with some
structural rigidity, as required by claim 30.
With respect to the continuousness of the yarn face, the Examiner
finds that Lefkowitz describes stitch-knitting 5 mil monofilament in a two
bar tricot stitch having 12 courses per inch (i.e., 12 stitches per inch in the
chain stitch direction) with a machine gauge of 40 needles per 10
centimeters or 10 chain stitches per inch (Lefkowitz, col. 7, ll. 21-29).
The Examiner has no method of testing whether the stitch-knitting
described in Example I of Lefkowitz would result in an “effectively
continuous” yarn face “such that the corresponding web surface is not
generally exposed,” i.e., only exposed enough to allow for small gaps and
interstices that allow viewing the felt surface upon close inspection. Thus,
based on the Examiner’s reasonable finding that the stitching of Lefkowitz
would form an “effectively continuous” yarn face as claimed, the burden
was shifted to Appellants to show that the specific stitch knitting density
taught in the example relied upon by the Examiner, in fact, does not meet the
density required by the claims. Appellants provide no such evidence. We
cannot say that Appellants’ arguments, nor the evidence in the Wright
Declaration, provide the requisite evidence.
The evidence supports the Examiner’s finding that Lefkowitz
describes a stitch bonded facing fabric including a felt web and effectively
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continuous yarn face as required by claim 30. Therefore, we sustain the
rejection of claims 30-37 and 51-64 as anticipated by Lefkowitz.
E. ANTICIPATION BY OTT
The Examiner rejects claims 1, 3-9, 12, 14-20, 30, 32-38, 51, 53-56,
58, 59, 61-66, 68, and 69 as anticipated by Ott. Appellants do not argue any
claim apart from the others. We select claim 58 as representative for
deciding the issue arising for this ground of rejection. There is no dispute
that Ott describes the required “effectively continuous” yarn face in
accordance with claim 58, the issue is: Does the evidence support the
Examiner’s finding that Ott describes a stitch bonded facing fabric including
a felt layer as claimed?
The Examiner finds that Ott describes wet-laid or dry-laid paper web
layers and spunbond or melt blown nonwoven layers (layers 74, 76, and 78)
that inherently possess intermingling and structural integrity, and are,
therefore, “felt” layers (Ans. 15).
Appellants contend that layers 74, 76, and 78 are not felts. According
to Appellants, Ott concedes that these layers are not felts, none of the layers
are matted, and layer 78 fails to have structural integrity in all directions (Br.
31). Appellants further rely upon the Wright Declaration statement that the
“unmatted inner and outer layers are not felt to one skilled in the art.” (Br.
31, citing Wright Decl. ¶ 13).
We cannot agree with Appellants that Ott concedes that the layers are
not felts. The portions of Ott Appellants cite to support this proposition
merely convey that Ott is directed to a disposable wiper that is softer with
more bulk and conformity than many textile and nonwoven wiping materials
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and can be made at lower cost (Ott, col. 1, ll. 23-29). The softness and lower
cost is attributed to the stitchbonding of the layers together, which produces
a cloth-like composite wiper (Ott, col. 2, ll. 37-45). Ott does not say that
layers 74, 76, and 78 are not nonwoven felt layers.
There is no dispute that Ott describes layers 74 and 76 as made by
spunbonding or meltblowing fibers or that Ott describes layer 78 as made
from wet-laid or dry-laid fibers (Br. 31; Reply Br. 5). Ott specifically
discloses forming cellulose natural fiber layer 78 from a two ply wet formed
tissue (Ott, col. 3, ll. 23-27). The layers must have structural integrity in
order to survive the conveying process shown in Figure 1 (Ott, col. 3, ll. 48-
59).
While Wright declares that the “unmatted inner and outer layers are
not felt to one skilled in the art” (Wright Decl. ¶ 13), Wright provides no
evidence to contradict the Examiner’s reasonable finding that spunbonding
and wet-laying or dry-laying inherently intermingle the fibers, i.e., result in
matting.
The evidence supports the Examiner’s finding that Ott describes a
stitch bonded facing fabric including a “felt” layer in accordance with the
meaning of “felt” in the claims. Therefore, we sustain the rejection of
claims 1, 3-9, 12, 14-20, 30, 32-38, 51, 53-56, 58, 59, 61-66, 68, and 69 as
anticipated by Ott.
F. ANTICIPATION BY GILLIES
The Examiner rejects claims 30, 32-36, 39, 41, 42, 46-51, 53-56, 65,
68, 69, 80, 83, 84, 86, and 87 as anticipated by Gillies. Appellants again
argue the claims as a group. We select claim 65 as representative. The issue
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is: Does the evidence support the Examiner’s finding that Gillies describes a
stitch bonded facing fabric including a “felt” layer?
Appellants contend that the median layer, a “felt” layer according to
the Examiner, is formed from carded and crosslaid viscose rayon fibers, and
Gillies explains that this layer lacks the cohesiveness and structural integrity
needed of a felt layer (Br. 32).
The Examiner responds that Gillies’ median layer inherently
possesses some degree of matting or intermingling of fibers and at least
some degree of structural integrity sufficient for subsequent processing
(Ans. 15).
Turning to Gillies, we find that this reference describes a median layer
as a nonwoven web of trilobal fibers (Gillies, col. 4, ll. 53-68). The web is
produced by carding and crosslaying the fibers in layers to provide the
desirable thickness (Gillies, col. 5, ll. 1-7). Gillies states that “[t]he web is
maintained as a cohesive unit by stitchbonding.” (Gillies, col. 5, ll. 7-8). In
other words, the median layers are joined to each other by stitchbonding.
While Wright declares that “to one skilled in the art, this median layer
of carded and crosslaid viscose rayon fibers is not matted and, thus, not a
felt” (Wright Decl. ¶13), neither Wright nor Appellants provide any
convincing evidence that carding does not result in matting.
It is reasonable to believe that carding results in intermingling of
fibers, i.e., matting. Moreover, the layer is an absorbent layer used in
incontinence pads, which as pointed out in Appellants’ Specification, was
normally understood to be a “felt” layer (Spec., col. 1, ll. 11-21).

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The evidence supports the Examiner’s finding that Gillies describes a
stitch bonded facing fabric including a “felt” layer in accordance with the
meaning of “felt” in the incontinence pad art. We sustain the rejection of
claims 30, 32-36, 39, 41, 42, 46-51, 53-56, 65, 68, 69, 80, 83, 84, 86, and 87
as anticipated by Gillies.
G. OBVIOUSNESS
With regard to the obviousness rejections, Appellants focus their
arguments on the two rejections directed to the independent claims, i.e., the
rejection over Gillies in view of Ott (Rejection 6), and the rejection over
Kyle in view of Gillies, Ott, and/or Sternlieb (Rejection 12).
1. OBVIOUSNESS OVER GILLIES AND OTT
Turning first to the rejection over Gillies and Ott, Appellants sole
contention is that neither Gillies nor Ott disclose a “felt” (Br. 33). However,
as explained above with respect to the anticipation rejections over Gillies
and Ott, both these references teach layers that reasonably meet the
requirements of a “felt” layer as that term is understood in the incontinence
pad art.
We, therefore, sustain the rejection of claims 1, 3-12, 14-23, 26-29,
37, 38, 43, 57, 58, 61-64, 66, 70, 71, 73, 74, 76-79, and 81 under 35 U.S.C.
§ 103(a) as unpatentable over Gillies in view of Ott.
Appellants do not advance any further arguments directed to the
rejections which add further evidence of obviousness to reach dependent
claims (Rejections 7, 9, and 11). Therefore, we sustain those rejections for
the reasons presented above.

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2. OBVIOUSNESS OVER KYLE, OTT, AND/OR STERNLIEB
With regard to the rejection over Kyle in view of Gillies, Ott, and/or
Sternlieb, Appellants contend that the Examiner failed to explain why it
would have been obvious to modify the incontinent pad of Kyle to
accommodate the stitch-bonding of the secondary references (Br. 34).
However, we agree with the Examiner that the substitution of Kyle’s bonded
facing fabric with a stitch-bonded layer would have been tantamount to the
substitution of one known facing layer and attachment method for another
for the predictable result of forming the facing fabric without need of a
separate bonding material (see Ans. 17-18; see also Ott, cols. 1 and 2).
When a claim is to a combination that ‘simply arranges old elements with
each performing the same function it had been known to perform’ and yields
no more than one would expect from such an arrangement, the combination
is obvious.” KSR, 550 U.S. 398, 417 (2007), quoting Sakraida v. AG Pro,
Inc., 425 U.S. 273, 282 (1976).
While the Examiner adds Taylor to reject claims 24, 40, 72, and 82
(Rejection 13), Appellants do not make any further arguments directed to
that rejection. We, therefore, sustain Rejection 13 for the same reasons as
we sustain Rejection 12.
3. OTHER OBVIOUSNESS REJECTIONS
Appellants do not advance any arguments directed to the obviousness
rejection over Ott (Rejection 5), which therefore is sustained for the same
reasons as applied to the rejection of the independent claims for anticipation
over this reference (Rejection 3), nor any arguments for the obviousness
rejection over Gillies and Taylor (Rejection 8) or over Gillies and Sternlieb
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(Rejection 10), which are, therefore, sustained for the same reasons as
applied to the rejection of the independent claims for anticipation by Gillies
(Rejection 4).
III. CONCLUSION
On the record before us, we sustain all the rejection maintained by the
Examiner.
IV. DECISION
The decision of the Examiner is affirmed.
V. 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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