Ex Parte Burazin et al

Patent Trial and Appeal BoardMay 15, 2014

12606268 (P.T.A.B. May. 15, 2014)

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. 12/606,268 10/27/2009 Mark Alan Burazin 64043964US05 (20612A) 2441 23556 7590 05/16/2014 KIMBERLY-CLARK WORLDWIDE, INC. Tammi Langin 2300 Winchester Rd. NEENAH, WI 54956 EXAMINER SANDERS, JAMES M ART UNIT PAPER NUMBER 1744 MAIL DATE DELIVERY MODE 05/16/2014 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 MARK ALAN BURAZIN, CRISTINA ASENSIO MULLALLY, ANDREW PETER BAKKEN, and ROBERT EUGENE KRAUTKRAMER ____________ Appeal 2012-006086 Application 12/606,268 Technology Center 1700 ____________ Before EDWARD C. KIMLIN, CHARLES F. WARREN, and CATHERINE Q. TIMM, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal from the final rejection of claims 1 and 3-7. We have jurisdiction under 35 U.S.C. Â§ 6(b). Claim 1 is illustrative: 1. A method of modifying the surface of a non-woven web comprising: (a) providing a pattern roll having a web contacting textured background surface having a three-dimensional topography defined by z-directional elevational differences of about 0.2 millimeter or greater, a highlight area and a design element, said design element surrounded by said Appeal 2012-006086 Application 12/606,268 2 highlight area, and said highlight areas being surrounded by said textured background surface; (b) contacting the textured surface of the pattern roll with a thermoplastic non-woven web; (c) conforming the non-woven web to the textured surface of the pattern roll by drawing and/or blowing hot air through the non-woven web; and (d) cooling the resulting textured non-woven web. The Examiner relies upon the following references as evidence of obviousness: Shiner US 1,379,703 May 31, 1921 Webb US 2,134,293 Oct. 25, 1938 Kuehn US D465,094 S Nov. 5, 2002 Bakken US 2004/0118546 A1 Jun. 24, 2004 Appellants' claimed invention is directed to a method of modifying the surface of a non-woven web. The method entails contacting the web with a pattern roll comprising a background surface having a three-dimensional topography, a highlight area, and a design element. The design element is surrounded by the highlight area, which in turn is surrounded by the textured background. Appealed claims 1, 3-5, and 7 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Bakken in view of Kuehn. Claim 6 stands rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over the stated combination of references further in view of Webb and Shiner. Appellants do not separately argue any particular claim on appeal. Nor do Appellants present a separate, substantive argument against the Examiner's rejection of claim 6 under Â§ 103. Accordingly, all the appealed claims stand or fall together with claim 1. Appeal 2012-006086 Application 12/606,268 3 We have thoroughly reviewed each of Appellants' arguments for patentability. However, we are in complete agreement with the Examiner that the claimed subject matter would have been obvious to one of ordinary skill in the art within the meaning of Â§ 103 in view of the applied prior art. Accordingly, we will sustain the Examiner's rejections for the reasons set forth in the Answer, which we incorporate herein, and we add the following for emphasis only. There is no dispute that Bakken, like Appellants, discloses a method of modifying the surface of a non-woven web by contacting the web with a pattern roll having a surface comprising a three-dimensional topography. As appreciated by the Examiner, the pattern of Bakken's roll does not include the presently claimed design element surrounded by a highlight area, which highlight area is surrounded by the textured background. However, as explained by the Examiner, Bakken expressly teaches that the depth of the relief pattern on the roll may be varied, and that the pattern may be any shape, such as sine waves, triangles, square waves, irregular shapes, or other shapes, and may be a continuous curvilinear, discrete elements, or a combination of both types ([0128]). Accordingly, based on the Bakken disclosure alone, we are convinced that it would have been obvious for one of ordinary skill in the art to apply any desired pattern to the roll of Bakken, including the presently claimed one, for imparting such pattern to a non-woven web. As noted by the Examiner, it is well settled that matters relating to ornamentation only, which have no mechanical function, cannot serve to distinguish a claimed invention from the prior art. In re Seid, 161 F.2d 229 (CCPA 1947). Appeal 2012-006086 Application 12/606,268 4 Appellants have not demonstrated that the claimed pattern, which is akin to printed matter, provides a new and unobvious functional relationship between the pattern and the substrate of the roll. See In re Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983). Kuehn, in our view, only underscores the obviousness of providing a pattern roll with the claimed background surface, highlight area and design element. Kuehn describes the surface pattern for embossed paper, and we agree with the Examiner that it would have been obvious for one of ordinary skill in the art to provide a pattern roll of the type disclosed by Bakken with the pattern depicted by Kuehn. We find no error in the Examiner's finding that Kuehn's figure fairly suggests that the dotted lines serve as a background surface which may be formed by the surface of a roll having a three-dimensional topography. As a final point, we note that Appellants base no argument upon objective evidence of nonobviousness, such as unexpected results. In conclusion, based on the foregoing and the reasons well stated by the Examiner, the Examinerâ€™s decision rejecting the appealed claims is affirmed. The decision of the Examiner 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)(1)(iv). AFFIRMED cam