12093674 (P.T.A.B. Jun. 21, 2018)

Ex Parte Stridfeldt et al

Patent Trial and Appeal BoardJun 21, 2018

12093674 (P.T.A.B. Jun. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/093,674 05/14/2008 105718 7590 06/25/2018 SCA Hygiene Products AB c/o Buchanan Ingersoll & Rooney, PC 1737 King Street, Suite 500 Alexandria, VA 22314 FIRST NAMED INVENTOR Chatrine Stridfeldt 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. 1018798-000466 5088 EXAMINER KIDWELL, MICHELE M ART UNIT PAPER NUMBER 3761 NOTIFICATION DATE DELIVERY MODE 06/25/2018 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): ADIPDOC 1@BIPC.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CHATRINE STRIDFELDT and LEIF WALLSTROM 1 Appeal2016-005050 Application 12/093,674 Technology Center 3700 Before STEFAN STAICOVICI, JAMES P. CALVE, and ANTHONY KNIGHT, Administrative Patent Judges. CAL VE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. Â§ 134(a) from the Office Action rejecting claims 1, 2, 5-8, 10-16, 19, and 22-30. Appeal Br. 2. Claims 3, 4, 9, 17, 18, 20, and 21 are cancelled. Id. at Claims App'x 2, 4. We have jurisdiction under 35 U.S.C. Â§ 6(b ). Appellant's representative presented argument at an oral hearing held on June 19, 2018. We REVERSE. 1 SCA Hygiene Products AB is identified as the real party in interest. Appeal Br. 2. Appeal 2016-005050 Application 12/093,674 CLAIMED SUBJECT MATTER Claims 1, 15, and 3 0 are independent. Claim 1 is illustrative and is reproduced below. 1. An absorbent article comprising a liquid-pervious first sheet adapted to face a wearer, a liquid-impervious second sheet adapted to face away from the wearer, and a core part, the core part comprising an absorbent core, the absorbent core arranged between the first and second sheets, and an auxiliary component, the auxiliary component consisting of a layer of a lipid phase containing a skincare agent composition, wherein said skincare agent composition is immobilized in the lipid phase, wherein the lipid phase is solid at a temperature of 25Â°C and is in a substantially liquid state at a temperature of 37Â°C, wherein the lipid phase is a water-insoluble organic phase with a fatty character, wherein said lipid phase is included as one or more beads, wherein said skincare agent composition comprises an emollient and an immobilizing agent for the emollient, wherein the emollient has either a plastic or fluid consistency at 20Â°C, and the immobilizing agent is miscible with the emollient and has a melting point of at least 35Â°C, and wherein the skin care agent composition comprises from about 10% to about 95% of the emollient. Appeal Br. Claims App 'x 1. REJECTI0N2 Claims 1, 2, 5-8, 10--16, 19, and 22-30 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Vega (US 6,153,209, iss. Nov. 28, 2000). 2 The Examiner withdrew the rejection of claims 1, 2, 5-8, and 10--14 under 35 U.S.C. Â§ 112, second paragraph, as being indefinite. Ans. 6--7; see Non- Final Act. 3. 2 Appeal 2016-005050 Application 12/093,674 ANALYSIS Claims 1, 2, 5---8, 10-16, 19, and 22-30 Rejected As Unpatentable over Vega A dispositive issue is whether Vega teaches or suggests an auxiliary component that is a layer of a lipid phase in the form of one or more beads with a skincare agent composition immobilized therein. 3 We agree with the Examiner that Vega discloses a skincare agent composition that comprises an emollient and an immobilizing agent. Non-Final Act. 4--5. We also agree with the Examiner that Vega's immobilizing agent locks or entraps the emollient in the immobilizing agent thereby raising the melting point of the skincare agent composition. Id. at 5---6; Ans. 8-9; see Vega, 21:15-22:55. 4 We agree with Appellants that independent claims 1, 15, and 30 also require the skincare agent composition, which includes an emollient and a immobilizer, to be immobilized in an auxiliary component consisting of a layer of a lipid phase in the form of one or more beads. Appeal Br. Claims App'x 1, 4, 6. Therefore, the Examiner's finding that Vega's immobilizing agent in the skincare agent composition also serves as the claimed auxiliary component because it immobilizes an emollient impermissibly reads the lipid phase layer auxiliary component out of the claims. See Ans. 9-10. 3 Independent claim 30 recites "the auxiliary component [is] an independent layer of a lipid phase comprising a skin care composition ... wherein said lipid phase is in the form of one or more beads of lipid." Appeal Br. Claims App'x 6. 4 Appellants define "lipid phase" as "a water-insoluble organic phase with a fatty character" with suitable lipids including "petroleum-derived lipids, synthetic lipids, and animal-and plant-derived lipids." Spec. 5:13-16. Vega discloses immobilizing agents as including fatty alcohols and fatty acids. Vega, 22:12-35. 3 Appeal 2016-005050 Application 12/093,674 The claimed absorbent article includes a skincare agent composition, which comprises an emollient and an immobilizing agent. The immobilizing agent is added to the emollient and is miscible therewith (or solubilized in) to raise the melting temperature of the skincare agent to a desired melting point. Spec. 12:28-13: 10. The resulting skincare composition of emollient and immobilizing agent is immobilized in an auxiliary component, which is a layer of a lipid phase in the form of beads in the absorbent article. 5 Id. at 25:12-13. Thus, the Specification and claims treat the immobilizing agent and the lipid phase auxiliary component in the form of beads as different, distinct, and separate elements. See Becton, Dickinson and Co. v. Tyco Healthcare Grp., LP, 616 F.3d 1249, 1254--55 (Fed. Cir. 2010). We agree with the Examiner that Vega teaches to apply skincare agent compositions onto absorbent articles as "encapsulated compositions." Vega also sprays small droplets and gravure prints discrete dots of skincare agent compositions onto absorbent articles. Ans. 9; Vega, 28:35-39; 30:40-50. Immobilizing agents form crystals that entrap emollient. Vega, 21:62-22:2. However, the Examiner has not identified any disclosure in Vega of the encapsulated skincare agent compositions being immobilized in a layer of a lipid phase in the form of one or more beads. Nor has the Examiner explained how spraying small droplets or gravure printing discrete dots onto an absorbent article forms a lipid layer of one or more beads with a skincare composition immobilized therein as claimed. We are not persuaded that spraying droplets and printing dots necessarily forms a lipid layer of "beads" with a skincare composition immobilized therein, as claimed. 5 Independent claims 15 and 30 require a skincare agent composition to be immobilized in the lipid phase. Appeal Br. Claims App'x 4, 6. 4 Appeal 2016-005050 Application 12/093,674 The Examiner is correct that the Specification does not define the term "bead." Ans. 9. However, the Specification does disclose that the auxiliary component may be a lipid phase preparation, the skincare agent is immobilized inside the lipid phase for as long as the lipid phase is in a solid state, and the lipid phase is present as beads in the absorbent article. Spec. 2 5: 1-1 7. The Specification further discloses that Smaller beads melt quicker than larger beads and whole layers as a response to increased temperatures, and the skincare agent is therefore released exactly when it is needed. Furthermore, it is relatively easy to arrange beads in suitable positions in an absorbent article. Typically the bead size is within the range from 0.5 mm - 5 mm. Id. at 25: 14--19. Appellants illustrate the auxiliary component lipid phase beads in Figures 4 and 6, which are reproduced below. 2013 ; 202 20.4 \ f /-2{}0 \ : ,. ..... m; i Jl~ ------_. _: ~:- _. :::Â·l":_:----."::'..:::_L:"~-:-~-:--:~::~'.:l-""":":--1.. J JV ........ l~ im:Â· :_. """"""""'""""''Â·----------------------'~~"'-~i ~,. ...................... , ..................................... ,, .. ,.,, ...................................... ,:. ............................................................................ :, ...... :J ... \ 'Â· ' ',, 204 208 Fig.4 308 304 Flg,6 Â·, 310 Figures 4 and 6 are section views of a panty liner with beads 204, 304 of a lipid phase containing a skin care agent. Spec. 26:9-24 (Exs. 2 and 3). 5 Appeal 2016-005050 Application 12/093,674 In contrast to the claimed lipid phase layer of beads that immobilize a skincare composition therein, Vega teaches to apply a skincare composition to an absorbent article as a spray or as droplets to "provid[ e] the appearance, protective and/or skin conditioning benefits when the composition is delivered to the skin of the wearer." Vega 29:9-13. Vega does not disclose a lipid phase layer in the form of beads being used to immobilize a skincare agent composition therein as claimed, however. Thus, we do not sustain the rejection of claims 1, 2, 5-8, 10-16, 19, and 22-30. DECISION We reverse the rejection of claims 1, 2, 5-8, 10-16, 19, and 22-30. REVERSED 6