Ex Parte Boggs et al

Patent Trial and Appeal BoardSep 27, 2012

11018768 (P.T.A.B. Sep. 27, 2012)

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. 11/018,768 12/20/2004 Lavada C. Boggs KCX-1336 (17616) 8945 22827 7590 09/27/2012 DORITY & MANNING, P.A. POST OFFICE BOX 1449 GREENVILLE, SC 29602-1449 EXAMINER CRAIG, PAULA L ART UNIT PAPER NUMBER 3778 MAIL DATE DELIVERY MODE 09/27/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte LAVADA C. BOGGS, BRYAN D. HAYNES, HUGHEY K. JEFFRIES, HANNONG RHIM, JACQUELINE SCHMIDT ROSE, C. ALLEN SMITH, ROBERT D. WRIGHT and ALI YAHIAOUI ____________________ Appeal 2010-002905 Application 11/018,768 Technology Center 3700 ____________________ Before EDWARD A. BROWN, MICHELLE R. OSINSKI, and SCOTT E. KAMHOLZ, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-002905 Application 11/018,768 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 1, 3, 9-15, 23-27, and 29-33. (Reply Br. 1).1 We have jurisdiction over this appeal under 35 U.S.C. Â§ 6(b). We affirm. THE CLAIMED SUBJECT MATTER Independent claim 1, reproduced below, is illustrative of the appealed subject matter. 1. A personal care product comprising: a. a liquid impervious backing sheet, b. a liquid pervious bodyside liner comprising a nonwoven fabric composite that comprises at least one elastic layer of meltblown fibers and at least one nonelastic extensible layer of spun bonded fibers, wherein the at least one layer of meltblown fibers comprises fibers that comprise a blend of an elastomeric polymer and an internal wetting agent, wherein the internal wetting agent comprises an hydrogenated ethoxylated oil, and c. an absorbent material disposed between the liquid impervious backing sheet and the liquid pervious bodyside liner. 1 In the Reply Brief, Appellants confirm that the listing of appealed claims in the Appeal Brief was incorrect. (See App. Br. 2). Appeal 2010-002905 Application 11/018,768 3 THE REJECTIONS Appellants seek review of the following rejections under 35 U.S.C. Â§ 103(a): 1. Claims 1, 3, 9, 10, 12, 14, 15, 23, 25, 32, and 33 as unpatentable over Tanzer (US 6,570,056 B1; iss. May 27, 2003) and Yahiaoui (US 6,028,016; iss. Feb. 22, 2000). (Ans. 3). 2. Claim 11 as unpatentable over Tanzer, Yahiaoui, and Abuto '743 (US 5,964,743; iss. Oct. 12, 1999). (Ans. 8). 3. Claims 13 and 29-31 as unpatentable over Tanzer, Yahiaoui, and Abuto '592 (US 5,458,592; iss. Oct. 17, 1995). (Ans. 8). 4. Claim 24 as unpatentable over Tanzer, Yahiaoui, and Roessler (US 6,552,245 B1; iss. Apr. 22, 2003). (Ans. 10). 5. Claims 26 and 27 as unpatentable over Tanzer, Yahiaoui, and Pike (US 5,382,400; iss. Jan. 17, 1995). (Ans. 11). ANALYSIS Claims 1, 3, 9, 10, 12, 14, 15, 23, 25, 32, and 33 - Tanzer and Yahiaoui Appellants argue claims 1, 3, 9, 10, 12, 14, 15, 23, 25, 32, and 33 as a group. (App. Br. 4-10). We select claim 1 as representative of the grouping; claims 3, 9, 10, 12, 14, 15, 23, 25, 32, and 33 stand or fall with claim 1. See 37 C.F.R. Â§ 41.37(c)(1)(vii) (2011). Claim 1 recites, inter alia, "wherein the at least one layer of meltblown fibers comprises fibers that comprise a blend of an elastomeric polymer and an internal wetting agent, wherein the internal wetting agent comprises an hydrogenated ethoxylated oil." The Examiner found Tanzer discloses a liquid pervious body-side liner including a nonwoven fabric composite including an elastic layer of meltblown fibers, in which the elastic Appeal 2010-002905 Application 11/018,768 4 layer includes a wetting agent. (Ans. 3-4). The Examiner found Tanzer does not expressly disclose that the wetting agent is an internal wetting agent or includes an hydrogenated ethoxylated oil. (Ans. 4). The Examiner found Yahiaoui teaches a personal care product with hydrogenated ethoxylated oil as an internal wetting agent to a layer of meltblown fibers in a nonwoven fabric composite. (Ans. 4). The Examiner concluded that it would have been obvious to one of ordinary skill in the art to modify Tanzer's article to include an internal wetting agent of hydrogenated ethoxylated oil to provide desirable wettability properties after multiple insults, as taught by Yahiaoui. (Ans. 5). Appellants contend that Tanzer and Yahiaoui fail to teach or suggest a layer of meltblown fibers that comprises a blend of an elastomeric polymer and an internal wetting agent. (App. Br. 5). Appellants contend that "[t]he present specification discloses that when utilizing an internal wetting agent to impart fiber surface modification, the wetting agent is melt extruded with the elastic meltblown fibers." (App. Br. 6) (citing Spec. 3:4-7). Here, Appellants' Specification describes that: These fibers can be surface modified to become water wettable. Fiber surface modification can be achieved via internal melt addition during the extrusion process and suggested internal wetting agents (or surfactants) include, but are not limited to, modified castor oils, hydrogenated ethoxylated castor oils, sorbitan monooleate, ethoxylated siloxanes, and mixtures thereof. Appellants contend that "the wetting agent is more uniformly dispersed throughout the layer rather than simple topical application." (App. Br. 6). Appellants further contend that Yahiaoui discloses the topical application of Ahcovel (App. Br. 6), and fails to disclose or suggest an Appeal 2010-002905 Application 11/018,768 5 "internal wetting agent as described and claimed by Appellants" (App. Br. 7).2 Appellants contend that their Specification "discloses an alternate embodiment wherein the wetting agents are topically applied such as in Yahiaoui (see for example Fig. 1 of Yahiaoui)." (Reply Br. 3). Appellants state that, "[a]s taught by Appellants, '(f)iber surface modification can also be achieved by topical application of wetting agents (or surfactants) . . . [.]" (Reply Br. 3) (citing Spec. 3:7-11). In response to Appellants' contentions, the Examiner stated: [T]he claims do not require melt extrusion, or that the wetting agent is added during the extrusion process. The claims do not require elevated temperatures, or uniform dispersion of the wetting agent throughout the layer of meltblown fibers. Nothing in the claims indicates that spray heads may not be used for the internal wetting agent. (Ans. 12-13). Appellants acknowledge that the claims do not specifically include limitations of melt extrusion or elevated temperatures, but contend that the claims "require meltblown fibers that comprise a blend of an elastomeric polymer and an internal wetting agent." (Reply Br. 4). We disagree. Claim 1 recites that "the at least one layer of meltblown fibers comprises fibers that comprise a blend of an elastomeric polymer and an internal wetting agent." This recitation requires that the layer of meltblown fibers comprises fibers that comprise the blend, but it does not specify that these "fibers" that comprise the blend must be "meltblown fibers." Claim 1 2 Appellants describe Ahcovel as a hydrogenated castor oil and sorbitan monooleate blend. (App. Br. 4). Appellants' Specification discloses that AHCOVEL Base N-62 is also referred to as "Ahcovel" (Spec. 19:22-23) and describe AHCOVEL Base N-62 as including a blend of hydrogenated ethoxylated castor oil and sorbitan monooleate. (Spec. 20:1-3). Appeal 2010-002905 Application 11/018,768 6 only limits that these "fibers" "comprise a blend of an elastomeric polymer and an internal wetting agent." Claim 1 thus does not require any fibers that both are meltblown and comprise the blend of elastomeric polymer and internal wetting agent. Appellants further contend, "[i]n light of the specification, one skilled in the art would reasonably conclude that the internal wetting agent is not simply mixed in with already meltblown elastomeric polymer but rather blended and meltblown with (i.e. 'internally') the elastomeric polymer." (Reply Br. 4). However, this contention appears to be premised on claim 1 requiring meltblown fibers that comprise a blend of an elastomeric polymer and an internal wetting agent. As discussed supra, claim 1 does not recite this limitation. Regarding the claim term "internal wetting agent," the Examiner found Appellants' Specification does not define "internal." (Ans. 13). The Examiner stated "Yahiaoui teaches saturating the fabric with the wetting agent, and immersing the fabric in the wetting agent . . . . Yahiaoui certainly does not teach away from having the wetting agent reach the interior of the layer of meltblown fibers." (Ans. 13). In response, Appellants contend: [T]he specification indicates a difference in 'internal' wetting agents versus topically applied wetting agents. Indeed, one skilled in the art appreciates that an internal wetting agent yields a structure with more uniform dispersion of the wetting agent than simple topical application. (Reply Br. 3-4). This contention is not persuasive. Claim 1 itself does not limit the scope of the term "internal wetting agent." The Patent and Trademark Office gives claim limitations their broadest reasonable interpretation consistent with the specification, reading Appeal 2010-002905 Application 11/018,768 7 the claim language as it would be interpreted by one of ordinary skill in the art. See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). There are two exceptions to this general rule: namely, when the Specification sets out a definition of a claim term, or when Appellants disavow the full scope of the term. See Thorner v. Sony Computer Ent. Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). See also In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (An applicant is permitted to define specific terms used to describe the invention by setting forth a definition for terms with reasonable clarity, deliberateness and precision.); In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) ("Absent claim language carrying a narrow meaning, the PTO should only limit the claim based on the specification or prosecution history when those sources expressly disclaim the broader definition.") To act as his own lexicographer, "[i]t is not enough for a patentee to simply disclose a single embodiment or use a word in the same manner in all embodiments, the patentee must 'clearly express an intent' to redefine the term." See Thorner, 669 F.3d at 1365 (internal citations omitted). Here, the Specification describes an "internal wetting agent." Appellants have not, however, established that the Specification clearly expresses an intent to define the term "internal," or that the Specification provides an express disclaimer of a broad interpretation of the term that precludes the Examiner's construction. Claim 1 recites that the internal wetting agent comprises an hydrogenated ethoxylated oil. The Examiner found Yahiaoui discloses the use of Ahcovel, which, as noted supra, contains hydrogenated ethoxylated oil, as claimed. Accordingly, claim 1 recites no limitation that distinguishes Appeal 2010-002905 Application 11/018,768 8 the composition of the recited internal wetting agent from the wetting agent disclosed by Yahiaoui. Appellants further contend that Yahiaoui teaches away from an internal wetting agent "as Yahiaoui discloses that the treating agents are to be applied at room temperature." (App. Br. 7-8). Appellants contend that, in contrast, they "claim an internal wetting agent that is added during the extrusion process," and that one skilled in the art would know that melt extrusion requires elevated temperatures. (App. Br. 8). As discussed supra, however, claim 1 does not require that the fibers that comprise the internal wetting agent are also meltblown fibers, or that the fibers are formed by melt extrusion or elevated temperatures. Accordingly, this contention is not persuasive. Appellants also contend that the Examiner improperly used their disclosure as a blueprint to reconstruct the claimed invention from isolated teachings. (App. Br. 8-10). In response, the Examiner stated that the claims are directed to a combination of elements that yields predictable results, and Appellants have not provided any persuasive argument or evidence that the combination advanced by the Examiner would have been uniquely challenging to one of ordinary skill in the art. (Ans. 14). The Examiner also stated that Yahiaoui teaches a bodyside liner that maintains desirable wettability properties after multiple insults, which provides sufficient motivation to combine Yahiaoui's nonwoven fabric composite with Tanzer's bodyside liner. (Ans. 14). We find that the Examiner has articulated an adequate reason with rational underpinnings to combine the teachings of Tanzer and Yahiaoui to result in the claimed personal care product. Accordingly, we do not find Appellants' contentions (see also Reply Br. 4-5) Appeal 2010-002905 Application 11/018,768 9 persuasive. We sustain the rejection of claims 1, 3, 9, 10, 12, 14, 15, 23, 25, 32, and 33. Claim 11 â€“ Tanzer, Yahiaoui, and Abuto '743 Claim 11 depends from claim 1. Appellants contend that Abuto '743 fails to cure the deficiencies of Tanzer and Yahiaoui with respect to claim 1. (App. Br. 10). As we find no deficiencies in the rejection of claim 1, as discussed supra, we also sustain the rejection of claim 11 for similar reasons. Claims 13 and 29-31 â€“ Tanzer, Yahiaoui, and Abuto '592 Claims 13 and 29-31 depend from claim 1. Appellants contend that Abuto '592 fails to cure the deficiencies of Tanzer and Yahiaoui with respect to claim 1. (App. Br. 10). Hence, we also sustain the rejection of claims 13 and 29-31 for similar reasons as those for claim 1. Claim 24 â€“ Tanzer, Yahiaoui, and Roessler Claim 24 depends from claim 1. Appellants contend that Roessler fails to cure the deficiencies of Tanzer and Yahiaoui. (App. Br. 10-11). Hence, we also sustain the rejection of claim 24 for similar reasons as those for claim 1. Claims 26 and 27 â€“ Tanzer, Yahiaoui, and Pike Claims 26 and 27 depend from claim 1. Claim 26 recites that the spunbonded fibers are crimped. The Examiner found Tanzer does not expressly disclose this limitation. (Ans. 11). The Examiner found crimped spunbonded fibers are well known in the art, as evidenced by Pike, and concluded that it would have been obvious to modify Tanzer to include crimped, spun bond fibers to reduce shrinkage and produce a uniform fabric, as taught by Pike. (Ans. 11-12). Appeal 2010-002905 Application 11/018,768 10 Appellants contend that Pike fails to provide any suggestion to one skilled in the art to modify Tanzer to result in the claimed crimped, spunbonded fibers. (App. Br. 11-12; Reply Br. 5-6). However, Appellants' contentions do not persuasively address the Examiner's rationale for the combination with respect to the desirable characteristics of Pike's crimped nonwoven fabric found by the Examiner. Hence, we sustain the rejection of claims 26 and 27. DECISION The Examiner's decision rejecting claims 1, 3, 9-15, 23-27, and 29-33 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(1)(iv). AFFIRMED mls