Kimberly-Clark Worldwide, Inc.

Patent Trials and Appeals Board

Mar 10, 2022

2022001456 (P.T.A.B. Mar. 10, 2022)

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. 16/652,720 04/01/2020 Jason G. Csida 65020878US11 5795 23556 7590 03/10/2022 KIMBERLY-CLARK WORLDWIDE, INC. Patent Docketing 2300 Winchester Rd. Neenah, WI 54956 EXAMINER CHANDHOK, JENNA N ART UNIT PAPER NUMBER 1789 NOTIFICATION DATE DELIVERY MODE 03/10/2022 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 JASON G. CSIDA and JASON K. SIECK __________ Appeal 2022-001456 Application 16/652,720 Technology Center 1700 ____________ Before CATHERINE Q. TIMM, JEFFREY T. SMITH, and MICHAEL P. COLAIANNI, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134 the final rejection of claims 1-20. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We AFFIRM IN PART. Appellant’s invention is directed to elasticated materials that have curved elastomeric strands (Spec. 1:10-11). Claim 1 is illustrative: 1. An elasticated material comprising: a first substrate layer; 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Kimberly- Clark Worldwide, Inc. (Appeal Br. 1). Appeal 2022-001456 Application 16/652,720 2 a second substrate layer; an elastomeric strand disposed between the first substrate layer and the second substrate layer; and a plurality of bonds bonding the first substrate layer to the second substrate layer, wherein the elastomeric strand comprises at least one straight portion and at least one arcuate portion, wherein the plurality of bonds comprises at least a first bond and a second bond, the first bond and the second bond disposed on opposite sides of the elastomeric strand and separated by a distance less than an un-tensioned diameter of the elastomeric strand, the first bond and the second bond disposed along the at least one straight portion of the elastomeric strand, and wherein the plurality of bonds further comprises at least a third bond and a fourth bond, the third bond and the fourth bond being longitudinally adjacent and disposed on opposite sides of the elastomeric strand and spaced apart a distance greater than the un-tensioned diameter of the elastomeric strand, the third bond and the fourth bond disposed along the at least one arcuate portion of the elastomeric strand. Appellant appeals the following rejections: 1. Claims 3, 6, and 72 are rejected under 35 U.S.C. § 112(b) as indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or joint inventor regards as the invention. 2 The Examiner withdrew the § 112(b) rejection of claims 1, 8 and 16 (Ans. 10). Appeal 2022-001456 Application 16/652,720 3 2. Claims 1-6, 8-13, and 15-203 are rejected under 35 U.S.C. § 103 as unpatentable over Popp (US 6,635,041 Bl; issued Oct. 21, 2003) in view of LaVon (US 2019/0070042 Al; published Mar. 7, 2019). 3. Claims 7 and 14 are rejected under 35 U.S.C. § 103 as unpatentable over Popp in view of LaVon, and Takeuchi (US 2019/0167487 A1; published June 6, 2019). FINDINGS OF FACT & ANALYSIS We review the appealed rejection for reversible error based on the arguments and evidence presented by Appellant. 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”). Rejection under 35 U.S.C. § 112(b) The Examiner’s findings regarding the § 112(b) rejection of claims 3, 6, and 7 are located on page 3 of the Final Action. The Examiner finds that claim 3 is unclear whether the shape is directed to each bond individually or the bonds collectively (Final Act. 3). Regarding claims 6 and 7, the Examiner finds claims 6 and 7 recite “comprising the elastomeric strand at least one straight portion” and “comprising the elastomeric strand at least 3 The Examiner omits claims 3, 4, 11, 12, and 18 from the statement of rejection (Final Act. 4). However, the Examiner addresses the subject matter of claims 3, 4, 11, 12, and 18 in the body of the rejection (Final Act. 7-8). Accordingly, we find the Examiner’s omission to be harmless error. Appeal 2022-001456 Application 16/652,720 4 one arcuate portion”, respectively, which are indefinite (Final Act. 3). The Examiner finds claims 6 and 7 are unclear what relationship is intended between the elastomeric strand at the straight or arcuate portions (Final Act. 3). Regarding claim 3, Appellant argues that “it is clear that the first shape is a feature of each individual bond of the set of the third bond and the fourth bond while the second shape is a feature of each individual bond of the set of the first bond and the second bond” (Appeal Br. 4). We agree. Claim 3 recites “wherein the third bond and the fourth bond each comprise a first shape, wherein the first bond and the second bond each comprise a second shape, and wherein the first shape is different than the second shape.” (emphasis added). The word “each” in the two wherein clauses forecloses the Examiner’s reading of the third and fourth bonds as collectively comprising a shape. The Examiner points to no persuasive evidence that Appellant uses “each” in a manner different from its ordinary and accustomed meaning, and under its ordinary and accustomed meaning “each” is understood to refer to every one of the two separately identified things, here, bonds. Thus, the clause must be read as requiring both the third and fourth bonds individually as having the same shape and the first and second bonds as individually having a second same shape where the two shapes are different. Regarding claims 6 and 7, Appellant argues that claims 6 and 7 depend from claim 1, which recites “wherein the elastomeric strand comprises at least one straight portion and at least one arcuate portion.” (Appeal Br. 5). Appellant contends the phrase “the elastomeric strand at least one straight portion” in claim 6 refers to the “at least one straight Appeal 2022-001456 Application 16/652,720 5 portion” of claim 1 (Appeal Br. 5). Appellant further contends the phrase “the elastomeric strand at least one arcuate portion” refers to “at least one arcuate portion” in claim 1 (Appeal Br. 5). We agree that claims 6 and 7 are clear that “at least one arcuate portion” and “at least one straight portion” has antecedent basis with claim 1. We reverse the Examiner’s § 112(b) rejection of claims 3, 6, and 7. Rejection under 35 U.S.C. § 103 The Examiner’s findings and conclusions regarding Popp and LaVon are located on pages 4 to 7 of the Final Office Action. Appellant argues Popp’s only teaching to vary the elastomeric member tension when using bonds is by varying density of ultrasonic bonds used to attach the leg elastic member 58 to the absorbent garment (Appeal Br. 6). Appellant contends the Examiner has not shown that Popp’s teaching would have led a person skilled in the art to vary the bond spacings disposed on opposite sides of the elastomeric strand so that the bonds have a larger or smaller spacing than an untensioned diameter of the elastomeric strand (Appeal Br. 6-7). Appellant argues LaVon teaches a bonded region 322 that completely spans and surrounds the elastic 316 as shown in Figure 10E (Appeal Br. 7). Appellant contends that if Popp was modified by LaVon, the elastic members 58 would be completely surrounded by the bonds (Appeal Br. 7). Appellant contends the claimed bonds differ from the bonds in LaVon because the claimed bonds lock the elastic member in place but still permit elastic member to expand in direction out of the plane formed by the bonded materials (Appeal Br. 8). Appeal 2022-001456 Application 16/652,720 6 The Examiner determines that Popp as modified by LaVon would have the bonds arranged such that the untensioned elastomeric strand is locked in at least one position (Ans. 11-12). LaVon teaches using ultrasonics to form a densified bonded area having a cross-section-bond-void-area corresponding substantially to the shape and dimensions of the tensioned elastic strand (¶ 246). LaVon further teaches that when the elastic member under tension is released, the relaxed elastomeric member’s cross-section increases and dimensionally locks the elastic strand in a fixed position in the bond region between the first and second substrates (¶ 246). LaVon teaches the importance of having the cross-sectional area of the void space of the bond being less than the cross-sectional area of the relaxed elastic strand (¶ 246). LaVon further teaches that the elastic member may be unbonded between densified bonds (¶ 247). LaVon teaches that the bond formed between the first and second material layers “completely surround[s]” the outer perimeter 358 of a discrete length of the stretched elastic strand 316 in a bond region 360 thereby forming a void that has substantially the same cross-sectional dimensions as the strained elastic strand 316 (¶ 248). LaVon teaches that an important factor in forming the dimensional lock bond between the first and second materials 354 and 356 without cutting the stretched elastic strands 316 is the Dtex-to-Nonwoven-Basis-Weight-Ratio (¶ 249). LaVon teaches that in order for the bond to have suitable strength to prevent separation of the first and second material layers 354 and 356, without application of excessive pressure that cuts the elastic strands 316, it is necessary to have enough nonwoven basis weight to substantially and completely wrap the elastic strands to form the bond regions (¶ 249). Appeal 2022-001456 Application 16/652,720 7 LaVon teaches that a void formed in the bond region is formed by a bond that completely surrounds the stretched elastic strand. In contrast, independent claims 1 and 8 and dependent claims 19 and 20 require multiple bonds that are spaced apart from one another a distance that is either less than an un-tensioned diameter of the elastomeric strand or greater than an un-tensioned diameter of the elastomeric strand in arcuate portions of the elastomeric strand. It is not clear how LaVon’s teaching to completely surround the elastic strand would have taught using multiple bonds positioned on opposite sides of the elastic strand and spaced as required in claims 1, 8, 19, and 20. Accordingly, we reverse the Examiner’s § 103 rejection of claims 1, 8, 19, and 20. Claims 16-18 are of different scope than claims 1 and 8. Claim 16 requires that the elastomeric strand is fixed in place between the first substrate layer and the second substrate layer along the straight portion and the elastomeric strand is moveable along the at least one arcuate portion. Claim 16 does not require multiple bonds along different portions of the elastic strand having different spacings as recited in claims 1 and 8. Accordingly, we fail to see any distinction between what is suggested by Popp and modified LaVon and the subject matter of claim 16. Lavon shows in Figure 10D an arcuate portion of the elastic strand 316 in region 362 that is free to move and the elastic strand in 316 in bonded region 360 that is dimensionally locked by the bonds (¶ 250). The combination of Popp’s teaching to modify bond density to affect tension in the elastic strands coupled with LaVon’s teaching to dimensionally lock the elastic member via bonds and leave portions of the elastic strand with arcuate sections freer to move would have rendered obvious the subject matter of claim 16. Appeal 2022-001456 Application 16/652,720 8 Appellant’s arguments regarding claim 17 merely recite the limitations in claim 1 (Appeal Br. 11-12). Claim 17, however, depends from claim 16 and neither claim 16 nor claim 17 recite first, second, third and fourth bonds as recited in claim 1. Appellant’s arguments do not address the Examiner’s finding regarding the subject matter of claim 17 on page 7 of the Final Office Action. Regarding claim 18. Appellant argues that LaVon does not teach the shape of the bonds, but rather the variety of shapes that may be formed by the individual bonds (Appeal Br. 12). Appellant contends that there is nothing in LaVon that would suggest providing differently shaped pairs of bonds along straight and arcuate portions of an elastic strand (Appeal Br. 12). Appellant’s arguments are not persuasive. Claim 18 recites having differently shaped first bonds and second bonds proximate to the straight portion of the elastomeric strand and the arcuate portion of the elastomeric strand, respectively. Claim 18 does not require the spacing between the bonds as argued by Appellant on pages 12-13 of the Appeal Brief. The combined teachings of Popp and LaVon would have suggested adjusting the bond density to affect the tension in the elastic member. LaVon teaches that the “bond or bond region” may have various shapes including circles, triangles, squares, and diamonds (¶ 182). We agree with the Examiner’s finding that LaVon teaches the bonds may be have different shapes (Final Act. 7-8). The combined teachings of Popp and LaVon would have suggested the subject matter of claim 18. Accordingly, we sustain the Examiner’s § 103 rejection of claims 16-18. Appeal 2022-001456 Application 16/652,720 9 Claims 19 and 20 recite subject matter that is similar to the subject matter of claims 1 and 8 that required spaced apart bond pairs. Claim 20 further recites that the spacing is less than or greater than the untensioned diameter of the elastomeric strand. Accordingly, we reverse the Examiner’s § 103 rejection of claims 19 and 20 for the same reasons discussed above regarding claims 1 and 8. On this record, we reverse the Examiner’s § 103 rejection of claims 1-6, 8-13, 15, 19, and 20 over Popp in view of LaVon. We reverse the Examiner’s § 103 rejection of claims 7 and 14 over Popp, LaVon and Takeuchi for the same reasons we reversed the rejection of claims 1 and 8. We affirm the Examiner’s § 103 rejection of claims 16-18 over Popp and Lavon. DECISION Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 3, 6, 7 112(b) Indefiniteness 3, 6, 7 1-6, 8-13, 15- 20 103 Popp, LaVon 16-18 1-6, 8-13, 15, 19, 20 7, 14 103 Popp, LaVon, Takeuchi 7, 14 Overall Outcome 16-18 1-15, 19, 20 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED IN PART