The Procter & Gamble Company

Patent Trials and Appeals Board

Sep 29, 2021

2021002290 (P.T.A.B. Sep. 29, 2021)

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.
15/729,704 10/11/2017 Gerard A. Viens 14972 2394
27752 7590 09/29/2021
THE PROCTER & GAMBLE COMPANY
GLOBAL IP SERVICES
CENTRAL BUILDING, C9
ONE PROCTER AND GAMBLE PLAZA
CINCINNATI, OH 45202
EXAMINER
NGO, MEAGAN N
ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
09/29/2021 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):
centraldocket.im@pg.com
mayer.jk@pg.com
pair_pg@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GERARD A. VIENS, STEPHEN LEBEUF HARDIE, and
EDWARD PAUL CARLIN
____________

Appeal 2021-002290
Application 15/729,704
Technology Center 3700
____________

Before MICHAEL J. FITZPATRICK, BRANDON J. WARNER, and
MICHAEL L. WOODS, Administrative Patent Judges.

WARNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–21, which are all the pending claims.
Appeal Br. 1; Final Act. 1 (Office Action Summary). We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to the “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as The
Procter & Gamble Company. Appeal Br. 1.
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Application 15/729,704

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CLAIMED SUBJECT MATTER
Appellant’s disclosed invention relates to “disposable absorbent
articles suitable for absorbing and containing body exudates.” Spec., p. 1,
ll. 5–6. Claim 1, reproduced below with line breaks added for clarity, is the
sole independent claim and is representative of the subject matter on appeal.
1. A spunlaced, carded, staple fiber, nonwoven having a
basis weight of between about 40 grams per square meter (gsm)
and about 100 gsm, the spunlaced, carded, staple fiber,
nonwoven comprising[:]
a plurality of absorbent fibers, a plurality of stiffening
fibers[,] and a plurality of resilient fibers,
wherein the absorbent fibers comprise from about
20 percent to about 50 percent by weight,
wherein the stiffening fibers comprise bi-component
fibers at about 20 percent to about 40 percent by weight,
wherein the resilient fibers comprise from about
25 percent to about 55 percent by weight,
wherein the resilient fibers comprise a hollow spiral
configuration, []
wherein the [spunlaced,] carded[,] staple fiber[,]
nonwoven is heat stiffened,
wherein the spunlaced, carded, staple fiber, nonwoven
comprises a first surface and an opposing second surface,
wherein a first stratum forms a portion of the first
surface, and a second stratum forms a portion of the second
surface, and
wherein the first stratum comprises a lower amount of
absorbent fibers than the second stratum.

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EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Viazmensky US 2004/0018795 A1 Jan. 29, 2004
Ueda US 2012/0041410 A1 Feb. 16, 2012
Wirtz US 2014/0005622 A1 Jan. 2, 2014
Viens US 2014/0343523 A1 Nov. 20, 2014
Pernot US 2015/0250654 A1 Sept. 10, 2015
Takahashi US 2016/0213532 A1 July 28, 2016

REJECTIONS
The following rejections are before us for review:2
I. Claims 1–4, 8–10, 12–19, and 21 stand rejected under
35 U.S.C. § 103 as being unpatentable over Viens and Wirtz.
Final Act. 3–7.
II. Claim 5 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Viens, Wirtz, and Ueda. Id. at 7–8.
III. Claims 6, 7, and 11 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Viens, Wirtz, Viazmensky, and Pernot.
Id. at 8–9.
IV. Claim 20 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Viens, Wirtz, and Takahashi. Id. at 9.

2 We note that the rejection of claims 1–21 under 35 U.S.C. § 112(b), as
being indefinite, has been withdrawn by the Examiner and thus is not before
us for review as part of the instant appeal. Ans. 3; see Final Act. 2.
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ANALYSIS
Rejection I – Claims 1–4, 8–10, 12–19, and 21
as unpatentable over Viens and Wirtz
Appellant presents argument against the rejection of all claims subject
to Rejection I together. See Appeal Br. 2–5. We select independent claim 1
as representative of the issues that Appellant presents in the appeal of this
rejection, with remaining claims 2–4, 8–10, 12–19, and 21 standing or
falling therewith. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner determined that a combination of teachings from Viens
and Wirtz renders obvious the subject matter claimed. See Final Act. 3–5.
Appellant argues that the rejection is deficient because of asserted
shortcomings in the Examiner’s combination of Viens and Wirtz—namely
that there would be no reasonable expectation of success (Appeal Br. 2–3),
that it would change the principle of operation of Viens (id. at 3–4), and that
it would render Viens unsatisfactory for its intended purpose (id. at 4).
These asserted shortcomings hinge on Appellant’s contention that the layers
relied upon from Wirtz comprise fibers that are latex bonded and therefore
cannot be combined with a hydroentanglement process as in Viens. See id.
at 2–5. Appellant’s contention is misplaced.
After careful consideration of the record before us, Appellant’s
argument does not apprise us of error in the Examiner’s factual findings
from Viens and Wirtz, which are supported by a preponderance of the
evidence, or in the Examiner’s reasonable conclusion of obviousness, which
is rationally articulated based on prior art teachings. In short, we sustain the
Examiner’s rejection based on the reasoned positions set forth therein and in
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light of the Examiner’s thorough responses to Appellant’s arguments. See
Final Act. 3–5; Ans. 3–5.
In particular, we agree with the Examiner’s position that Wirtz
teaches more than just an embodiment of layers comprising fibers that are
latex bonded; it also teaches that suitable layers are described in various
previous patent documents, such as U.S. Patent No. 7,112,621 to Rohrbaugh
(Rohrbaugh). Ans. 3 (citing Wirtz ¶ 145); see also Final Act. 4–5 (citing
Wirtz ¶¶ 142–149). The Examiner’s citations to column 6 of Rohrbaugh
broadly disclose that fibers of a nonwoven can be joined together by
mechanical entanglement (such as hydroentanglement), by chemical bond,
or by combinations thereof. Ans. 3 (citing Rohrbaugh, col. 6, ll. 5–10,
col. 6, ll. 56–60). The extent of this teaching from Wirtz (incorporating, for
example, the disclosures from Rohrbaugh) supports the Examiner’s position
that layers of the nonwoven of Wirtz can be hydroentangled, undermining
Appellant’s contention to the contrary.
Further, even if the layers of Wirtz include latex bonding, Appellant
offers no factual evidence or persuasive technical reasoning to support the
contention that such layers could not be combined with a hydroentanglement
process as in Viens. Appellant’s contention is no more than attorney
argument unsupported by objective evidence and thus is entitled to little, if
any, weight. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In
re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (attorney arguments in a
brief cannot take the place of evidence). Instead, the only relevant evidence
of record (Wirtz ¶¶ 142–149, including the citation to Rohrbaugh) suggests
that fibers in a nonwoven can be joined to one another (both within each
layer and between layers) “by mechanical entanglement, by chemical
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Application 15/729,704

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bond[,] or by combinations thereof” (Rohrbaugh, col. 6, ll. 5–10), also
undermining Appellant’s contention to the contrary.
In conclusion, after careful consideration of the evidence of record
and for the foregoing reasons, Appellant’s argument does not apprise us of
error in the Examiner’s findings or reasoning in support of the conclusion of
obviousness. Accordingly, we sustain the rejection of independent claim 1,
and claims 2–4, 8–10, 12–19, and 21 falling therewith, under 35 U.S.C.
§ 103 as being unpatentable over Viens and Wirtz.

Rejections II–IV – Claims 5–7, 11, and 20
as unpatentable over Viens and Wirtz, with one or more of
Ueda, Viazmensky, Pernot, and Takahashi
With respect to the rejections of claims 5–7, 11, and 20, which depend
directly or indirectly from independent claim 1, Appellant does not set forth
any additional substantive arguments separate from those discussed supra
with respect to Rejection I. See Appeal Br. 5–6. For the same reasons that
Appellant’s arguments do not apprise us of error in Rejection I, these
arguments likewise do not apprise us of error in Rejections II–IV.
Accordingly, for the foregoing reasons, we sustain the rejections of
claims 5–7, 11, and 20 under 35 U.S.C. § 103.

DECISION
We AFFIRM the Examiner’s decision rejecting claims 1–4, 8–10,
12–19, and 21 under 35 U.S.C. § 103 as being unpatentable over Viens and
Wirtz.
We AFFIRM the Examiner’s decision rejecting claim 5 under
35 U.S.C. § 103 as being unpatentable over Viens, Wirtz, and Ueda.
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We AFFIRM the Examiner’s decision rejecting claims 6, 7, and 11
under 35 U.S.C. § 103 as being unpatentable over Viens, Wirtz,
Viazmensky, and Pernot.
We AFFIRM the Examiner’s decision rejecting claim 20 under
35 U.S.C. § 103 as being unpatentable over Viens, Wirtz, and Takahashi.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

CONCLUSION
In summary:

Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 8–10,
12–19, 21 103 Viens, Wirtz
1–4,
8–10,
12–19, 21

5 103 Viens, Wirtz, Ueda 5
6, 7, 11 103 Viens, Wirtz, Viazmensky, Pernot 6, 7, 11
20 103 Viens, Wirtz, Takahashi 20
Overall
Outcome
1–21

AFFIRMED