Kimberly-Clark Worldwide, Inc.

Patent Trials and Appeals Board

Jun 12, 2020

15745493 - (D) (P.T.A.B. Jun. 12, 2020)

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.
15/745,493 01/17/2018 Kevin Joseph Vogt 64977604US08 1071
23556 7590 06/12/2020
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
Neenah, WI 54956
EXAMINER
UTT, ETHAN A
ART UNIT PAPER NUMBER
1783
NOTIFICATION DATE DELIVERY MODE
06/12/2020 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):
Kimberlyclark.docketing@kcc.com
Tisha.Sutherland@kcc.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KEVIN JOSEPH VOGT, PETER JOHN ALLEN,
JEFFREY DEAN HOLZ, TARA MARIE LOGUT,
ROBERT EUGENE KRAUTKRAMER, and
SAMUEL AUGUST NELSON

Appeal 2020-000175
Application 15/745,493
Technology Center 1700
____________

Before DONNA M. PRAISS, MONTÉ T. SQUIRE, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

PRAISS, Administrative Patent Judge.

DECISION ON APPEAL1

Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–3, 5, 7–11, and 24–26. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 In this Decision, we refer to the Specification filed Jan. 17, 2018 (“Spec.”),
the Final Office Action dated Jan. 25, 2019 (“Final Act.”), the Appeal Brief
filed June 25, 2019 (“Appeal Br.”), and the Examiner’s Answer dated July
25, 2019 (“Ans.”).
2 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Kimberly-Clark Worldwide, Inc. as the
real party in interest. Appeal Br. 1.
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STATEMENT OF THE CASE
The subject matter on appeal relates to absorbent tissue products such
as facial tissue and bath tissue to absorb body fluid and leave the skin dry.
Spec. 1:3–4. More particularly, the subject matter relates to a textured
fibrous structure provided with a design element and an additive registered
to the design element without the use of traditional printing or spraying
techniques. Id. at 1:29–31.
A cross-sectional view of Appellant’s fibrous structure is shown in
Figure 6 below. Spec. 3:24.

Figure 6 above depicts fibrous structure 10 having alternating continuous
line elements and valleys having a z-directional height. Spec. 11:30–33.
Design elements 100 shown in Figure 6 are formed by subtracting a portion
of line elements 80, resulting in design elements 100 lying in a third plane
(design element plane 110) between upper surface plane 85 and bottom
surface plane 87. Id. at 12:1–3. The Specification describes a line element as
referring to an element, such as a design element, in the shape of a
continuous, discrete, interrupted, and/or partial line with respect to a fibrous
structure on which it is present. Id. at 5:29–31. The line element is also
described as “any suitable shape such as straight, bent, kinked, curled,
curvilinear, serpentine, sinusoidal, and mixtures thereof that may form
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regular or irregular periodic or non-periodic lattice work of structures”
having a length of at least 10 mm. Id. at 5:31–33.
The Specification describes selectively applying a chemical
papermaking additive in registration with a design element or those portions
of the sheet supported by a protuberance on a pattern roll so that the sheet
caliper is not adversely affected. Id. at 8:10–20.
Claim 1 is illustrative and reproduced from the Claims Appendix to
the Appeal Brief (paragraphing added and disputed limitations italicized).
1. A chemically treated fibrous structure comprising
a fibrous structure having an upper surface lying in a first plane,
a first design element lying in a second plane, a bottom surface
lying in a third plane and
a second design element lying in a fourth plane above the
second plane,
where there is a z-direction height difference between the first
and third planes and
the second and fourth planes lie between the first and third
planes and
a chemical papermaking additive selected from the group
consisting of strength agents, bonding agents, softening agents,
lotions, humectants, emollients, vitamins and colorants is
selectively disposed on the fourth plane in registration with the
second design element and the first and second planes are
substantially free from the chemical papermaking additive.
ANALYSIS
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. 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)
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(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”)). After considering the
argued claims and Appellant’s arguments, we are not persuaded of reversible
error in the appealed rejections.
The Examiner rejects claims 1–3, 7–11, and 24–26 as follows for the
reasons provided in the Final Office Action.3 Final Act. 6–15.
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
1 102(a)(1) Hamilton4
2, 3, 7, 11 103 Hamilton, Hamilton ’6075
8, 9, 24–26 103 Hamilton, Hamilton ’607, Lostocco6
10 103 Hamilton, Hilbig7
Appellant argues the rejection of claims 8, 9, and 24–26 as a group
and separately argues the rejections of claims 1–3, and 7. Appeal Br. 2–8.
Accordingly, claims 9 and 24–26 will stand or fall with claim 8, claim 10
will stand or fall with claim 1, and claim 11 will stand or fall with claim 2.
See 37 C.F.R. § 41.37(c)(1)(iv). Claims 1–3, 7, and 8 are addressed below.

3 All rejections of claim 5 were withdrawn by the Examiner following
Appellant’s cancellation of claim 5. Ans. 12.
4 US 6,099,940, issued Aug. 8, 2000.
5 US 5,871,607, issued Feb. 16, 1999.
6 US 2007/0137808 A1, published June 21, 2007.
7 US 2004/0055721 A1, published Mar. 25, 2004.
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Claim 1
Appellant contends the Examiner erred in rejecting claim 1 over
Hamilton because Hamilton treats all protrusions with a substance, therefore
the protrusions are not selectively treated as required by claim 1. Appeal
Br. 4. Appellant annotates Hamilton’s Figure 3, below, which shows first
and second protrusions of different heights labeled “A” and “B.”

Hamilton’s Figure 3 above is an elevational sectional view showing
three-dimensional sheet material 12 and the location of substance 16 within
hollow protrusions 14. Hamilton 4:48–51, 5:64–6:17. Appellant contends
that even in embodiments where the protrusions contain different amounts of
substance 16, Hamilton still teaches that all of the protrusions are treated.
Appeal Br. 4 (citing Hamilton 7:50–53).
Appellant also contends the protrusions in Hamilton’s Figure 5
embodiment all have an upper surface lying in the same plane in addition to
all protrusions being treated with a substance. Id. Appellant annotates the
upper surface of the protrusions’ compressed state as “Fourth Plane” in
Hamilton’s Figure 5 below. Id.
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Hamilton’s Figure 5 above is an elevational sectional view showing
increased deformation of the sheet material where additional protrusions
deform to allow the substance within the protrusions to contact the target
surface. Hamilton 2:58–62.
The Examiner responds that Appellant’s annotations of Hamilton’s
Figures 3 and 5 indicate that Appellant interprets first, second, and fourth
planes as being by a first side of a fibrous structure and a third plane defined
by a second side of the fibrous structure. Ans. 13. The Examiner, however,
determines that claim 1 does not require the second or fourth plane to
correspond to any particular side of the fibrous structure. Id. The Examiner
annotates Hamilton’s Figure 3 below.

Hamilton’s Figure 3 above, as annotated by the Examiner, includes a dashed
line for the first plane, a dashed and single-dotted line for the second plane, a
dotted line for the third plane, and a dashed and double-dotted line for the
fourth plane. Ans. 14. The Examiner also determines that there is no
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requirement that the second and fourth planes, or the first and second design
elements, be on the same side of the fibrous structure. Id. at 15. Thus, design
elements can be reasonably formed on opposite sides of the fibrous
structure. Id. Referring to Hamilton’s Figure 3, the Examiner finds that an
additive added to depths lower than height A1, B1, C1 have first and second
planes substantially free from the additive, therefore the additive is
selectively disposed on the fourth plane. Id.
Appellant’s arguments do not persuade us that the Examiner
reversibly erred in rejecting the claims as anticipated by Hamilton. Appellant
does not dispute the Examiner’s claim construction of claim 1, namely that
claim 1 does not preclude the first and second planes or the first and second
design elements being on the same side of the fibrous structure. Based on the
Examiner’s claim construction and the Examiner’s annotation of Hamilton’s
Figure 3, the preponderance of the evidence in this appeal record supports
the Examiner’s conclusion that the claimed subject matter is anticipated by
Hamilton. Accordingly, we sustain the Examiner’s rejections of claims 1 and
10 for the reasons given above and those expressed in the Answer, including
the Response to Argument section.
Claims 2, 3, and 7
Appellant contends that the Examiner erred in rejecting claims 2, 3,
and 7, each depending from claim 1, for similar reasons provided with
respect to claim 1. Appeal Br. 5–6. Appellant asserts that all of Hamilton’s
protrusions are treated with a substance, all of Hamilton’s compressed
structure’s elements in Figure 5 have an upper surface that lies in the same
(fourth) plane, and the claims are not directed to protrusions having different
amounts of additive disposed therein. Id. Appellant also argues that a skilled
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artisan would not have been motivated to reduce the surface area occupied
by protrusions (claim 2), the Examiner fails to provide reasoned analysis
how a skilled artisan would have determined the claimed weight range of
chemical add-on (claim 3), and Hamilton ’607 teaches as a preferred
material a relatively thin high density polyethylene deformed to form
protrusions having heights from 100 to 300 microns (claim 7). Id. at 6–7.
We do not find Appellant’s arguments persuasive of error for the
reasons discussed above in connection with claim 1 and provided by the
Examiner in the Final Office Action and Answer. Regarding claims 2 and 3,
the Examiner finds Hamilton teaches protrusion density and size can be
varied based on various factors to attain a useful chemically treated fibrous
structure including the particular substance applied and the particular
application of the fibrous structure. Ans. 16. The Examiner points out that
since a protrusion can only hold a certain volume of additive, additive
weight contained therein is also encompassed by Hamilton’s disclosure. Id.
The Examiner’s finding is supported by the record. Hamilton 10:21–23. The
Examiner’s reasoning that a skilled artisan would have been motivated to
optimize the chemical papermaking additive weight based on Hamilton’s
teaching (id. 17) is therefore supported by the record for the rejection of
claims 2 and 3.
Regarding claim 7, the Examiner finds Hamilton ’607’s disclosure is
not limited to the films in a preferred embodiment, but broadly discloses a
fibrous structure that is alternatively used to form the features overlapping
those of claim 7. Ans. 17. The Examiner’s finding that Hamilton ’607
broadly discloses that its deformable material is inclusive of “cellulose fiber
sheets” is supported by the record. Hamilton ’607, 4:55–58. Appellant does
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not dispute the Examiner’s finding that Hamilton ’607 discloses heights for
design elements comparable to those of Hamilton, wherein the heights range
from about 100 to about 300 µm, which overlaps the range recited in claim 7
of “about 300 to about 1,200 µm”. Final Act. 9 (citing Hamilton ’607,
9:17–19).
For these reasons and those the Examiner provides, we affirm the
Examiner’s rejection of claims 2, 3, 7, and 11 under 35 U.S.C. § 103.
Claim 8
Claim 8 recites “[t]he chemically treated fibrous structure of claim 1
having a basis weight from about 10 to about 50 grams per square meter
(gsm), and a geometric mean tensile (GMT) from about 500 to about 1,500
g/3”.” Appeal Br. 9 (Claims Appendix). Appellant contends the Examiner
erred in rejecting claim 8 because a skilled artisan would not have been
motivated to select specific disclosures from the prior art references and
combine them. Appeal Br. 7. Appellant asserts that the non-fibrous
polymeric film structures and processes of Hamilton and Hamilton ’607 are
not applicable to Lostocco’s fibrous tissue webs. Id. at 7–8. Appellant argues
that polymeric films are essential to Hamilton ’607’s invention to facilitate
deformation during the manufacturing process to form protrusions that stay
deformed with minimal spring back and a high modulus of elasticity to
minimize film stretch during use. Id. at 8 (citing Hamilton ’607 4:1–6,
9:49–52). According to Appellant, a skilled artisan would not have been
motivated to substitute polymeric films with Lostocco’s tissue web and
would not have reasonably expected such a substitution to be successful. Id.
We do not find Appellant’s arguments persuasive of error for the
reasons discussed above in connection with claim 7 and provided by the
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Examiner in the Final Office Action and Answer. As discussed above,
Hamilton ’607 broadly discloses a fibrous structure that is alternatively used
and, therefore, its disclosure is not limited to a preferred material, namely,
high density polyethylene.
For these reasons and those the Examiner provides, we affirm the
Examiner’s rejection of claims 8, 9, and 24–26 under 35 U.S.C. § 103.

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)(1)(iv).
CONCLUSION
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1 102(1) Hamilton 1
2, 3, 7, 11 103 Hamilton, Hamilton ’607
2, 3, 7, 11
8, 9, 24–26
103
Hamilton,
Hamilton ’607,
Lostocco
8, 9, 24–26

10 103 Hamilton, Hilbig 10
Overall
Outcome
1–3, 7–11,
24–26

AFFIRMED