Jeff W. FritzDownload PDFPatent Trials and Appeals BoardAug 2, 201913771402 - (D) (P.T.A.B. Aug. 2, 2019) Copy Citation 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. 13/771,402 02/20/2013 Jeff W. Fritz JOA1800.023 8800 26629 7590 08/02/2019 ZIOLKOWSKI PATENT SOLUTIONS GROUP, SC (ZPS) 136 S WISCONSIN ST PORT WASHINGTON, WI 53074 EXAMINER DULKO, MARTA S ART UNIT PAPER NUMBER 1746 NOTIFICATION DATE DELIVERY MODE 08/02/2019 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): info@zpspatents.com sml@zpspatents.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JEFF W. FRITZ ____________ Appeal 2018-001011 Application 13/771,402 Technology Center 1700 ____________ Before KAREN M. HASTINGS, MONTÉ T. SQUIRE, and JANE E. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL Appellant1 requests our review under 35 U.S.C. § 134(a) of the Examiner’s decision to finally reject claims 1–4.2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM. STATEMENT OF THE CASE Appellant claims a method of forming bonds between discrete components of disposable articles. Br. 5–6. Claim 1, the sole pending 1 Appellant is the Applicant, Curt G. Joa, Inc., which, according to the Appeal Brief, is also the real party in interest. Appeal Brief filed August 1, 2017 (“Br.”), 3. 2 Final Office Action entered March 8, 2017 (“Final Act.”), 1. Appeal 2018-001011 Application 13/771,402 2 independent claim, illustrates the subject matter on appeal, and is reproduced below with language italicized that is of particular relevance to the present appeal: 1. A method of forming bonds between discrete components of disposable articles, the method comprising: providing a top sheet layer in a machine direction, the top sheet layer having a first and a second cross-machine direction edge; folding over a portion of said top sheet layer at said two cross-machine direction edges; coupling a first side panel to the folded over portion of said first cross-machine direction edge of said top sheet layer at a first edge of said first side panel at a first bond site; coupling a second side panel to the folded over portion of said second cross-machine direction edge of said top sheet layer at a first edge of said second side panel at a second bond site; overlapping said first and second side panels and bonding said first side panel to said second side panel at a third bond site wherein said third bond site is located between said first bond site and said second bond site. Br. 10 (Claims Appendix) (emphasis added). The Examiner maintains the rejection of claims 1–4 under 35 U.S.C. § 103(a) as unpatentable over Eckstein3 in view of Miyamoto4 and Winqvist5 in the Examiner’s Answer entered September 8, 2017. DISCUSSION Upon consideration of the evidence relied upon in this appeal and 3 Eckstein et al., US 2008/0208152 A1, published August 28, 2008 (“Eckstein”). 4 Miyamoto, US 8,062,279 B2, issued November 22, 2011 (“Miyamoto”). 5 Winqvist et al., US 2010/0010465 A1, published January 14, 2010 (“Winqvist”). Appeal 2018-001011 Application 13/771,402 3 each of Appellant’s contentions, we affirm the Examiner’s rejection of claims 1–4 under 35 U.S.C. § 103(a) for the reasons set forth in the Final Action, the Answer, and below. We review appealed rejections for reversible error based on the arguments and evidence the appellant provides for each issue the appellant identifies. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (Explaining that even if the Examiner had failed to make a prima facie case, “it has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”)). Appellant argues claims 1–4 together, and, consequently, does not present arguments directed to the separate patentability of any particular claim. Br. 7–9. We accordingly select claim 1 as representative, and decide the appeal as to claims 1–4 based on claim 1 alone. C.F.R. § 41.37(c)(1)(iv). Eckstein discloses a method of manufacturing an absorbent incontinence article that comprises top sheet 32 (top sheet layer), first material segment 34a (first side panel), and second material segment 34b (second side panel). ¶¶ 2, 19, 51; claims 1 and 40; Figs. 4, 6a, 8. Eckstein discloses coupling first material segment 34a (first side panel) to first side edge section 36a of top sheet 32 (first bond site), and coupling second material segment 34b (second side panel) to second side edge section 36b of top sheet 32 (second bond site). ¶¶ 19, 20; Figs. 4, 5, 8. Eckstein discloses folding each material segment 34a, 34b on itself accordion-style along three fold lines 50, 52, 54, such that partial sections 60 of each material segment 34a, 34b “lie on each other.” ¶ 22; Figs. 5, 8. Eckstein discloses folding Appeal 2018-001011 Application 13/771,402 4 material segments 34a, 34b coupled to top sheet 32 inwards about fold axes 61a, 61b into the position shown in Figure 6a (folding over a portion of the top sheet layer at cross-machine direction edges, such that edges of first and second side panels are coupled to folded over portions of the top sheet layer at the cross-machine direction edges), so that second material segment 34b lies under first material segment 34a (overlapping the first and second side panels). ¶ 23; Fig 6a. Eckstein discloses releasably attaching partial sections 60 of material segments 34a, 34b to each other in this folded configuration at a joining point (bonding the first side panel to the second side panel at a bond site). ¶¶ 5, 25. The Examiner finds that Eckstein does not explicitly disclose folding cross-machine direction edges of top sheet 32 before coupling top sheet 32 to material segments 34a, 34b (first and second side panels), and the Examiner relies on Miyamoto for suggesting this feature. Final Act. 2–3. Miyamoto discloses disposable absorbent article or diaper 20 comprising chassis 54 and first and second ear panels 48 (first and second side panels) joined to an element of chassis 54, such as top sheet 30 (or 330). Col. 3, ll. 58–59, 66–67; col. 4, ll. 16–18; Figs. 1 and 3. Miyamoto discloses folding the lateral edges of top sheet 30 (or 330) to form distal flaps 76 (or 376) (folding over a portion of a top sheet layer at two cross-machine direction edges). Col. 6, ll. 43–46, 53–54; Fig. 5. Miyamoto discloses that although ear panels 48 may be joined to chassis 54 before folding lateral edges of top sheet 30 (or 330) to form distal flaps 76 (or 376), the presence of ear panels 48 creates “obstacles” that make folding top sheet 30 (or 330) more complicated. Col. 6, ll. 43–46, 53–54; col. 10, ll. 48–67. To avoid this problem, Miyamoto discloses folding lateral edges of top sheet 30 (or 330) Appeal 2018-001011 Application 13/771,402 5 to form distal flaps 76 (or 376) before ear panels 48 are joined to top sheet 30 (or 330). Id. In view of this disclosure in Miyamoto of folding top sheet 30 (or 330) to form distal flaps 76 (or 376) before attaching ear panels 48 (first and second side panels) to prevent ear panels 48 from creating obstacles during the folding of top sheet 30 (or 330), the Examiner concludes that it would have been obvious to one of ordinary skill in the art at the time of Appellant’s invention to modify the method of manufacturing an absorbent incontinence article disclosed in Eckstein by folding main piece 20 including top sheet 32 inwards about fold axes 61a, 61b before coupling top sheet 32 to material segments 34a, 34b. Final Act. 3. Appellant argues that Eckstein’s absorbent article “is unable to be formed by the method of the present claim” because material segments 34a, 34b must be accordion folded “prior to the folding over of the top sheet edges,” and “are also folded inward about a fold axis onto the main piece to create an arrangement folded upon itself.” Br. 7–8 (citing Eckstein ¶¶ 5, 6, 22, 23, 35, Figs. 6a and 8). Appellant further argues that “there is no motivation to modify Eckstine to the claimed method.” Br. 8. Appellant’s arguments, however, are unpersuasive of reversible error in the Examiner’s rejection. Miyamoto’s disclosure that folding top sheet 30 (or 330) of absorbent article 20 to form distal flaps 76 (or 376) before joining ear panels 48 (first and second side panels) to top sheet 30 (or 330) to prevent ear panels 48 from creating obstacles during the folding of top sheet 30 (or 330), reasonably would have suggested folding top sheet 32 of Eckstein’s absorbent article inwards about fold axes 61a, 61b before coupling accordion-folded material segments 34a, 34b (first and second side Appeal 2018-001011 Application 13/771,402 6 panels) to top sheet 32, to prevent material segments 34a, 34b from creating obstacles during the folding of top sheet 32. Thus, even if material segments 34a, 34b must be accordion folded before folding top sheet 32 as Appellant argues, the combined disclosures of Eckstein and Miyamoto nonetheless would have suggested folding top sheet 32 of Eckstein’s absorbent article before coupling top sheet 32 to accordion-folded material segments 34a, 34b (first and second side panels), to prevent material segments 34a, 34b from creating obstacles during the folding of top sheet 32. One of ordinary skill in the art would have recognized that Eckstein’s absorbent article may require some structural modifications to permit it to be folded in this manner. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) ([A]n obviousness analysis “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for [an examiner] can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.”); see also In re Preda, 401 F.2d 825, 826 (CCPA 1968) (“[I]t is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom.”). To the extent that Appellant asserts that one of ordinary skill in the art would not have had sufficient skill to appropriately adapt the structure of Eckstein’s absorbent article to allow top sheet 32 to be folded inwards about fold axes 61a, 61b before coupling accordion-folded material segments 34a, 34b (first and second side panels) to top sheet 32, Appellant’s arguments do not demonstrate that any such modification would have been “uniquely challenging or difficult for one of ordinary skill in the art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) Appeal 2018-001011 Application 13/771,402 7 (citing KSR, 550 U.S. at 418–19). Appellant argues that top sheet 230 and side panel 240 disclosed in Miyamoto “are not arranged as required by the present claim” because “[t]op sheet 230 is not folded over and flap sheet 240 cannot be attached to a non- existent folded over portion.” Br. 8. Appellant’s arguments are unpersuasive of reversible error because the rejection as presented in the Final Action does not rely on top sheet 230 and side panel 240 disclosed in Miyamoto, which are illustrated in Miyamoto’s Figure 4. Final Act. 3–4. Rather, the Examiner’s rejection is based on Miyamoto’s disclosure of folding the lateral edges of top sheet 30 (or 330) to form distal flaps 76 (or 376) as illustrated in Figure 5 of Miyamoto, and disclosure that folding top sheet 30 (or 330) before joining ear panels 48 to top sheet 30 (or 330) prevents ear panels 48 from acting as obstacles that make forming distal flaps 76 (or 376) more complicated. Id. Although Appellant also argues that “[t]he device of Eckstein is not concerned with alignment of side panels with the top sheet” (Br. 8), it is well established that “[i]n determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls.” KSR, 550 U.S. at 419; see also In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996) (“Although the motivation to combine here differs from that of the applicant, the motivation in the prior art to combine the references does not have to be identical to that of the applicant to establish obviousness.”); In re Beattie, 974 F.2d 1309, 1312 (Fed. Cir. 1992) (“[T]he law does not require that the references be combined for the reasons contemplated by the inventor.”). Although Appellant further argues that “[t]he claimed method is not Appeal 2018-001011 Application 13/771,402 8 inherent in the teaching of Eckstein” (Br. 8), as discussed above, the Examiner’s rejection is not based on inherency. Final Act. 2–4. Rather, the rejection is based on a combination of the explicit disclosures of Eckstein and Miyamoto. Id. Appellant also argues that “[a] person of skill in the art would understand that Eckstein teaches away from the present folding and bond forming method, since the present method is not even contemplated.” Br. 8. We find no disclosure in Eckstein, however, that criticizes or disparages folding a top sheet of a disposable article at two cross-machine directed edges and coupling first and second side panels to the folded over portions of the top sheet at first and second bond sites. Nor do we find any disclosure in Eckstein that criticizes or disparages overlapping the first and second side panels and bonding the panels at a third bond site located between the first and second bond sites. In fact, as discussed above, Eckstein discloses folding material segments 34a, 34b (first and second side panels) coupled to top sheet 32 at first 36a and second 36b edge sections of top sheet 32 (first and second bond sites) inwards about fold axes 61a, 61b so that second material segment 34b lies under first material segment 34a, and releasably attaching partial sections 60 of material segments 34a, 34b to each other in this folded configuration at a joining point (third bond site). ¶¶ 5, 23, 25, Fig 6a. Accordingly, contrary to Appellant’s arguments, Eckstein does not teach away from the “folding and bond forming method recited in claim 1.” DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006) (“We will not read into a reference a teaching away from a process where no such language exists.”); In re Appeal 2018-001011 Application 13/771,402 9 Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (“The prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed”); In re Gurley, 27 F.3d 551, 552–53 (Fed. Cir. 1994). We, therefore, sustain the Examiner’s rejection of claim 1, and claims 2–4, which each depend from claim 1, under 35 U.S.C. § 103(a). DECISION We affirm the Examiner’s rejection of claims 1–4 under 35 U.S.C. § 103(a). 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 Copy with citationCopy as parenthetical citation