Ex Parte Wang et al

Board of Patent Appeals and Interferences

Jul 31, 2012

10883173 (B.P.A.I. Jul. 31, 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.
10/883,173 06/30/2004 James Hongxue Wang 19665 2423
23556 7590 07/31/2012
KIMBERLY-CLARK WORLDWIDE, INC.
Tara Pohlkotte
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
KIDWELL, MICHELE M
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
07/31/2012 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 JAMES HONGXUE WANG,
RUSSELL PAUL GEORGE, CANDACE DYAN KRAUTKRAMER
and KENNETH RUSSELL CASSON
___________

Appeal 2010-000385
Application 10/883,173
Technology Center 3700
____________

Before JOHN C. KERINS, WILLIAM V. SAINDON and MICHAEL C.
ASTORINO, Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-000385
Application 10/883,173

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STATEMENT OF THE CASE
James Hongxue Wang et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the final rejection of claims 1-19 and 28-31. Claims 20-27 have been
withdrawn from consideration. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

THE INVENTION
Appellants’ invention is directed to a unitary absorbent core and a feminine
care article employing the unitary absorbent core. Independent claim 1,
reproduced below, is illustrative:
1. A unitary absorbent core comprising:

a single nonwoven layer having a body-facing surface and an
opposing garment-facing surface;

at least a portion of a first non-fibrous binding agent impregnated into
said garment-facing surface of said nonwoven layer and
wherein said body facing surface is substantially void of said
first binding agent;

a superabsorbent material located on the garment-facing surface of
said nonwoven layer in contact with said first binding agent and
wherein the area between the garment-facing surface and the
body-facing surface of said nonwoven layer is substantially
void of said superabsorbent material; and

a second non-fibrous binding agent located adjacent to said
superabsorbent material and superimposed on said first binding
agent such that said superabsorbent material is located between
said first binding agent and said second binding agent and
wherein said body-facing surface of said nonwoven layer is
substantially void of said second binding agent.

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Application 10/883,173

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THE REJECTIONS
The Examiner has rejected:
(i) claims 1-9, 12-17, 28, 29 and 31 under 35 U.S.C. § 102(b) as being
anticipated by Erspamer (US 2002/0013560 A1, pub. Jan. 31, 2002);
(ii) claims 10, 11, 18 and 19 under 35 U.S.C. § 102(b), or in the alternative
under 35 U.S.C. § 103(a) as being anticipated by or as being unpatentable over
Erspamer; and
(iii) claim 30 under 35 U.S.C. §103(a) as being unpatentable over Erspamer
in view of Daugherty (US H1575, pub. Aug. 6, 1996), Carlucci (US 2002/0141898
A1, pub. Oct. 3, 2002), Costea (US 2003/0109839 A1, pub. Jun. 12, 2003) and
Gagliardi (US 2003/0114809 A1, pub. Jun. 19, 2003).

ISSUE
Has the Examiner established that Erspamer discloses a superabsorbent
material located on a garment-facing surface of a nonwoven layer in contact with a
first binding agent, wherein the area between the garment-facing surface and the
body-facing surface of the nonwoven layer is substantially void of superabsorbent
material?
ANALYSIS
The Examiner initially takes the position that the example (Example 3)
presented at page 10, paragraph [0143] of Erspamer, in conjunction with the
disclosure in paragraph [0046], discloses a single nonwoven layer in the form of
the top layer of the exemplary structure. Ans. 3-4. The Examiner continues on to
state that the structures underlying this top layer have first and second binding
agents therein, so that a superabsorbent material is located between the first and
second binding agents. Ans. 4. As best understood, with a superabsorbent
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material positioned in this manner, the top layer which the Examiner regards as the
claimed “single nonwoven layer” would be substantially void of superabsorbent
material, as is also claimed.
While we admit to having some difficultly determining exactly how the
Examiner is applying the description of Example 3 to claim 1, it is clear that the
structures underlying the top layer (“single nonwoven layer”) are not disclosed as
containing any superabsorbent material, and there is no disclosure of such material
between those underlying layers. As such, there would be no superabsorbent
material located between first and second binding agents present in those layers, as
maintained by the Examiner. Instead, the only layer disclosed as containing any
superabsorbent material is the top layer itself. Example 3 therefore does not
appear to teach the limitation that the area between the two bounding surfaces of
the nonwoven layer is “substantially void” of the superabsorbent material.
The Examiner maintains, alternatively, that because Erspamer discloses that
a superabsorbent material may be, but is not necessarily1, incorporated into the
absorbent layer, and/or that, if incorporated into the layer, may be in the form of a
discrete layer, Erspamer teaches an absorbent structure having a superabsorbent
material with a nonwoven layer that “may be considered substantially void of
[superabsorbent material].” Ans. 7. Appellants counter that the use by Erspamer
of the term “may be” is in reference not to the possible location(s) of any
superabsorbent material relative to the nonwoven layer, but rather that the
nonwoven layer may or may not include a superabsorbent material at all. Br. 5.
We agree with Appellants that the Examiner reads too much into the Erspamer
disclosure. A person of ordinary skill in the art would understand that Erspamer is

1 Erspamer does not include the phrase “but is not necessarily,” this is the
Examiner’s interpretation of the Erspamer disclosure.
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employing the term “may be” to identify that a superabsorbent material could be
incorporated into the absorbent layer, “for improved absorption of fluids.”
Erspamer, p. 3, para. [0046]. Erspamer there is not discussing the relative
advantages of placing the superabsorbent material into the absorbent layer as
compared with the material being provided externally to the absorbent layer, rather
the discussion is in the nature of noting that an improvement in the absorption of
fluids by the absorbent layer would obtain if a superabsorbent material were
incorporated into the absorbent layer.
The Examiner additionally points to the disclosure in Erspamer that the
superabsorbent material may be in the form of a discrete stratum or mixed with the
fibers of the absorbent layer as evidence of an example in which the nonwoven
layer would be void of superabsorbent material. Ans. 7. Appellants point out that
Erspamer uses the term “into”, and not “onto” in describing where the
superabsorbent material is placed relative to the Erspamer absorbent layer, and, as
such, persons of ordinary skill in the art would understand that an Erspamer
absorbent layer that employs a superabsorbent material would have the material
within the area between the outer surfaces (garment-facing and body-facing) of the
absorbent layer. Br. 6.
Again, we believe that Appellants likely have the better argument here.
More importantly, given that the rejection is one based on anticipation by
Erspamer, we are unable to definitively determine that Erspamer necessarily
discloses an absorbent structure in which a superabsorbent material is employed,
and that an area between garment-facing and body-facing surfaces of a single
nonwoven layer is substantially void of that material, we are unable to sustain the
rejection on this basis. The Examiner has not demonstrated that such a structure is
explicitly disclosed, nor are we persuaded that one is inherently disclosed. In re
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Oelrich, 666 F.2d 578, 581 (CCPA 1981)(inherency may not be established by
probabilities or possibilities).
The remaining rejections of other claims depending from either claim 1 or
claim 28 do not remedy this deficiency of Erspamer in meeting the limitation
requiring that the area of the nonwoven layer between the garment-facing and
body-facing surfaces of that layer be substantially void of superabsorbent material.
Those rejections are also not sustained.

CONCLUSION
The Examiner has not established that that Erspamer discloses a
superabsorbent material located on a garment-facing surface of a nonwoven layer
in contact with a first binding agent, wherein the area between the garment-facing
surface and the body-facing surface of the nonwoven layer is substantially void of
superabsorbent material.

DECISION
The decision of the Examiner to reject claims 1-19 and 28-31 is reversed.

REVERSED

MP