Jeff W. Fritz

Patent Trials and Appeals Board

Aug 2, 2019

13771402 - (D) (P.T.A.B. Aug. 2, 2019)

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.
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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”).
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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
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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)
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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
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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)
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(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
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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
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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