Essity Hygiene and Health Aktiebolag

Patent Trials and Appeals BoardSep 2, 2021

2021003425 (P.T.A.B. Sep. 2, 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. 16/478,213 07/16/2019 Rikard Vilhelm Meyer Norén 1018798-001049 9101 105718 7590 09/02/2021 ESSITY HYGIENE AND HEALTH AKTIEBOLAG c/o Buchanan Ingersoll & Rooney, PC 1737 King Street, Suite 500 Alexandria, VA 22314 EXAMINER DEL PRIORE, ALESSANDRO R ART UNIT PAPER NUMBER 3781 NOTIFICATION DATE DELIVERY MODE 09/02/2021 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): ADIPDOC1@BIPC.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RIKARD VILHELM MEYER NOREN and EUGENE DOUGHERTY Appeal 2021-003425 Application 16/478,213 Technology Center 3700 ____________ Before JOHN C. KERINS, JILL D. HILL, and CYNTHIA L. MURPHY, Administrative Patent Judges. KERINS, 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. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 The term “Appellant” is used herein to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Essity Hygiene and Health Aktiebolag as the real party in interest. Appeal Br. 2. Appeal 2021-003425 Application 16/478,213 2 THE CLAIMED SUBJECT MATTER Appellant’s invention relates to a disposable article having a chassis and foldable first and second side panels. Claim 1, the only pending independent claim, is illustrative, and is reproduced below: 1. A disposable article comprising a chassis having first and second end portions and a central portion extending therebetween, said article further comprising a first side panel and a second side panel extending on each side of the first end portion of the chassis and said first and second side panels being folded over said chassis, to form a folded side panel configuration prior to use of said article, and said first side panel being arranged at least partly on top of the second side panel to form an overlap area in the folded side panel configuration, wherein the second side panel is bonded to the chassis by a first breakable bond in said folded side panel configuration and the first side panel is bonded to the second side panel by a second breakable bond in said overlap area, and wherein the first breakable bond has a weaker peel strength than the second breakable bond. THE REJECTION The Examiner rejects claims 1–21 under 35 U.S.C. § 103 as being unpatentable over Gustin (WO 2010/071507 A1, published June 24, 2010) in view of Eckstein (US 2008/0208152 A1, published Aug. 28, 2008). ANALYSIS Appellant presents arguments for independent claim 1 and, separately, for dependent claims 10 and 11. We take claim 1 as representative of the Appeal 2021-003425 Application 16/478,213 3 group of claims including claims 1–9 and 12–21, and address the arguments directed to claims 10 and 11 separately below. Claims 1–9 and 12–21 The Examiner finds that Gustin discloses a disposable article meeting all limitations set forth in claim 1, including a folded second side panel being bonded to a chassis by a first breakable bond, and a folded first side panel being bonded to the folded second side panel by a second breakable bond, but does not disclose that the first breakable bond has a weaker peel strength than the second breakable bond. Non-Final Act. 3–5. The Examiner cites to Eckstein as disclosing an absorbent disposable article also having a first side panel folded over a chassis and a second side panel folded over the first side panel, with the first panel being releaseably attached to the chassis (bond 70 attaching to permeable layer 30), and secondary bonds 62 disposed on the first and second panels, with bond 70 having a weaker peel strength than bonds 62. Id. at 6. The Examiner also finds that Eckstein teaches that the differing relative strengths of the bonds allows for unfolding of each side panel in a single pull. The Examiner concludes that it would have been obvious to modify the bonds of Gustin so as to make the bond between the second panel and the chassis of a weaker peel strength than the bond between the first and second panels, because doing so would predictably allow the two overlaid panels of Gustin to be freed by a single pull, namely, the two overlaid panels of Gustin would unfold in the same manner as the folds within each panel of Eckstein. Non-Final Act. 6. The Examiner also notes that the modification would ensure that the article can be opened from the folded arrangement without difficulty or damage to the article. Id., citing Eckstein ¶ 73. Appeal 2021-003425 Application 16/478,213 4 The Examiner additionally concludes that, in view of Eckstein, it would have been obvious to try the modification of Gustin to have its first breakable bond between a first panel and a chassis of a weaker peel strength than a second breakable bond between the first and second panels. Non- Final Act. 6–7. The Examiner reasons that the teachings of different relative bond strengths in relation to separating a panel from a chassis and separating pleated layers in a single pull are relevant and equally applicable to the unfolding of two panels, as in Gustin, such that a person of ordinary skill in the art would have a reasonable expectation of success in attempting to emulate the single pull unfolding of Eckstein as a function of bond strengths. Id. at 7. The Examiner points out that, when considering specifying bond strengths of the two bonds in Gustin, the number of possible solutions is limited to the bonds having equal peel strength; a first bond having a higher peel strength that a second bond; and the second having a higher peel strength than the first. Id. Appellant first argues that Eckstein discloses bonds between different sections of each side panel, on the one hand, and a bond between the uppermost side panel and the chassis, on the other. Appeal Br. 6. Appellant maintains that, because Eckstein does not disclose the bonds being in identical locations to those in claim 1, it cannot teach that one bond is stronger that the other. Id.; see also Reply Br. 2. The argument attacks Eckstein individually, and does not address the combination of teachings proposed by the Examiner. As discussed below, Eckstein indeed discloses Appeal 2021-003425 Application 16/478,213 5 that one of its bonds is stronger than the other. Accordingly, we are not apprised of error in the rejection on this basis. Appellant next argues, relative to the Examiner’s characterization of Eckstein as involving a single pull, that Eckstein does not disclose that its first and second side panels (segments 34a and 34b) will both be separated from each other and the chassis in one pull, and that Figure 6a of Eckstein shows that such action is not possible. Appeal Br. 6; see also Reply Br. 2. Appellant maintains that the reference to a single pull in Eckstein is in connection with separating accordion panels on one of the side panels, and “[i]t has nothing to do with separating segment 34a from 34b.” Id. This argument, too, attacks Eckstein individually, and fails to address that Eckstein’s single pull breaks two bonds of different strength; first, bond 70 attaching one of the side panels to panel 30 of the chassis, and, second, bonds 62 adhering the accordion panels formed on the side panel. See Eckstein ¶ 40. There is no need in Eckstein itself to separate segment 34a from segment 34b, in that they are not adhered to one another by a bond. Rather, the rejection involves applying the Eckstein teaching of providing bonds of two different strengths to the bonds disclosed in Gustin, one of which does adhere one side panel to the other. The Examiner does not misunderstand any of this, contrary to Appellant’s argument. Indeed, Appellant acknowledges that the Examiner takes the position that the relationship of employing bonds of different peel strengths to allow for both to be broken in a single pulling movement “is equally applicable regarding unfolding the two panels of Gustin.” Appeal Br. 6, quoting Non-Final Act. 7:4–5. Appellant retorts that “the Examiner provides no explanation or analogy between separating the three accordion Appeal 2021-003425 Application 16/478,213 6 panels 50, 52, 54 of Eckstein and separating two belt parts 9, 9’ of Gustin.” Id. (emphasis omitted). We believe that the Examiner makes clear that Eckstein discloses bonding in two areas involving a side panel of a disposable article, that both bonds may be broken sequentially with a single pull (Eckstein ¶ 40), and applies the teachings to the two bond areas disclosed in Gustin, one of which adheres the two side panels to one another. We are not certain what more Appellant believes to be necessary in terms of “explanation or analogy” in the rejection. Relatedly, Appellant argues that “the Examiner is trying to use the teachings of the accordion arrangement of Eckstein in the belt overlapping belt arrangement of Gustin. The principles are completely different.” Appeal Br. 7 (emphasis omitted); see also Reply Br. 3. Appellant does not identify what principles it is referring to, and how or why such principles are different. Id. As such, the argument fails to apprise us of error in the rejection. We further note that both involve releaseably adhering adjacent layers of material in a folded article, and causing adhesive bonds to sequentially break by applying a pulling force to produce separation, which undermines Appellant’s conclusory assertion that the principles are completely different. Appellant next challenges the Examiner’s position that Eckstein teaches that the bond 70 between the chassis and panel 34a is weaker than the bonds 62 between pleats 50, 52, and 54 of each panel, as being factually incorrect. Appeal Br. 7–8. Appellant accuses the Examiner of “cherry picking” from Eckstein, by pointing to the “most specifically” values of 1.0 N maximum average resistance to breaking for bond 70, and of 2.0 N maximum average resistance for breaking bonds 62. Id. at 7. Asserting that Appeal 2021-003425 Application 16/478,213 7 those values do not provide an accurate understanding of the relative bond strengths, Appellant engages in a different “cherry picking” exercise, pointing to the more broadly disclosed maximum values of 3.0 N for bond 70 and 2.5 N for bond 62. Id. Appellant then asserts that paragraph 53 of Eckstein evidences that bond 62 is “at best 2.3 N” and paragraph 71 evidences that bond 70 is “at best 2.5 N,” indicating that bond 70 is stronger than bond 62. Id. Eckstein does not discuss any of the bond strengths in terms of being “at best,” as Appellant incorrectly avers. Eckstein uses the term “at most,” which conveys an entirely different meaning. Thus, although there are instances in the disclosure (but not in the actual test results, as discussed below), in which bond 70 is broadly indicated as potentially having a higher maximum value than a broadly stated maximum value for bond 62, the Examiner’s determination based on the most narrowly defined maximum values, i.e., 1.5 N for bond 62 and 1.0 N for bond 70, is indicative that Eckstein desires bond 70 to be weaker than bond 62. The actual test data presented in Eckstein is not addressed in Appellant’s argument. A comparison of Tables 1 and 2, which report results from pull tests involving bond 62, with Table 3,2 which reports results from pull tests involving bond 70, evidences that the pull strengths for bond 70 are universally less than those for bond 62, and the values very closely parallel the 1.5 N maximum for bond 62 and 1.0 N maximum for bond 70 relied on by the Examiner. As such, Appellant’s arguments directed to an 2 The actual table, appearing after paragraph 86 in Eckstein, is not labeled, but is identified in that paragraph as Table 3. Appeal 2021-003425 Application 16/478,213 8 alleged faulty interpretation of bond strengths in Eckstein are not indicative of error in the rejection. Appellant last argues, for claim 1, that the Examiner’s “obvious to try” rationale, based on there being a finite number of solutions, is in error, in that the Examiner has failed to make any finding that a recognized problem or need existed, to which the combined teachings of Gustin and Eckstein pertain. Appeal Br. 8. Appellant maintains, in its Reply Brief, that although the Examiner identifies certain alleged benefits in the Eckstein device, that does not amount to evidence of a finding of a recognized problem or need in the art. Reply Br. 4. This argument pertains to only one of two rationales employed by the Examiner in concluding that the subject matter of claim 1 would have been obvious over Gustin and Eckstein. As seen in the foregoing analysis, we are not apprised of error in the rejection based upon the other rationale employed by the Examiner, and, as such, the rejection is sustained independently of the “obvious to try” rationale. We do, however, wish to note that the Examiner identifies that Eckstein is directed to addressing a problem of simplifying handling of disposable articles of this type, including unfolding panel sections in a single pull, which is addressed by using adhesive of particular and differing bond strengths, and ensuring, via use of those bond strengths, that detachment forces are such that a user is able to unfold the article while preventing damage to the joined components. Ans. 8–9. This appears to us to identify certain problems and needs in the disposable article art, contrary to Appellant’s contentions. Appeal 2021-003425 Application 16/478,213 9 The rejection of claim 1 is sustained. Claims 2–9 and 12–21 fall with claim 1. Claim 10 Appellant’s objection to the Examiner’s position concerning claim 10 is that the Examiner misunderstands and misapplies Eckstein’s disclosure related to a single pull, and that “Eckstein teaches removing each tab 34a, 34b with a single pull, not removing both tabs with a single pull.” Appeal Br. 8 (emphasis omitted). As noted above, the single pull of end panel 34a involves not only separating the accordion pleats, but also separating panel 34a from chassis section 30. Eckstein ¶ 40. As also noted above, the Examiner acknowledges that this breaking of two different bonds is not identical to what would occur with the claimed invention, but that the teaching, as applied to the two bonds in the Gustin disposable article, would yield the same result as the claimed invention. The rejection of claim 10 is sustained. Claim 11 Appellant essentially repeats its arguments directed to claim 1 and an alleged misinterpretation by the Examiner of the bond strengths disclosed in Eckstein for bonds 62 and 70. For the reasons set forth above in response to those arguments, we are not apprised of error in the rejection of claim 11. The rejection of claim 11 is sustained. CONCLUSION The rejection of claims 1–21 under 35 U.S.C. §103 is affirmed. Appeal 2021-003425 Application 16/478,213 10 DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–21 103 Gustin, Eckstein 1–21 Overall Outcome 1–21 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