Ex Parte Gagliardi et al

Patent Trial and Appeal Board

Oct 31, 2018

14132574 (P.T.A.B. Oct. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/132,574 12/18/2013
27752 7590 11/02/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Ivano Gagliardi
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
CM3790Q 2361
EXAMINER
VASAT,PETERS
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
11/02/2018 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
pair_pg@firsttofile.com
mayer.jk@pg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte IV ANO GAGLIARDI, ROBERTO D' ADDARIO,
and UWE VANDEL00 1
Appeal2018-003059
Application 14/132,574
Technology Center 3700
Before STEFAN STAICOVICI, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Ivano Gagliardi et al. ("Appellants") appeal under 35 U.S.C. § 134(a)
from the Examiner's decision finally rejecting claims 15-31. 2 We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants' Appeal Brief dated August 21, 2017 ("Br.") lists The Procter
& Gamble Company as the real party in interest. Br. 1.
2 Claims 1-14 are cancelled. Final Act. 2.
Appeal2018-003059
Application 14/132,574
CLAIMED SUBJECT MATTER
The claims are directed to an absorbent article having a lotion
composition. Spec. 1:8-10. Claim 15, reproduced below, is illustrative of
the claimed subject matter:
15. An absorbent article comprising:
a backsheet;
a topsheet joined to the backsheet, the topsheet defining a
body-facing surface;
a transverse centerline;
a lotion composition deposited on at least a portion of the
body-facing surface of the topsheet;
wherein the lotion composition is applied to the body-
facing surface of the topsheet in the form of a pattern of a
plurality of at least two lotion stripes, the lotion stripes being
separated by one or more lotion free areas;
wherein each lotion free area is defined by the region
between two neighboring lotion stripes;
wherein the plurality of lotion stripes is oriented parallel
with the transverse centerline of the absorbent article;
wherein the plurality of lotion stripes are unevenly spaced
from one another;
wherein the absorbent article is shaped so that opposing
longitudinal side edges of the absorbent article comprise a curved
portion;
wherein the plurality of lotion stripes extend to the
longitudinal side edges at the curved portion.
Br. 6 (Claims App.).
REFERENCES RELIED ON BY THE EXAMINER
Osborn
Virgilio
Vega
us 4,738,676
US 2006/0135920 Al
US 2008/0286224 Al
2
Apr. 19, 1988
June 22, 2006
Nov. 20, 2008
Appeal2018-003059
Application 14/132,574
REJECTION
Claims 15-31 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Vega, Osborn, and Virgilio. Final Act. 3.
OPINION
Claims 15-24
Appellants make arguments for the patentability of claims 15-24 as a
group. Br. 3--4. We select claim 15 as representative, and claims 16-24
stand or fall with claim 15. See 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner finds that Vega discloses many of the limitations of
independent claim 15 including lotion applied in stripes to a body-facing
surface of a topsheet of an absorbent article. Final Act. 3--4. Vega does not
disclose the shape of the absorbent article, but the Examiner finds that Vega
discloses that suitable articles are disclosed by Osborn, which is
incorporated by reference in Vega. Final Act. 4; see also Vega ,r,r 28 and
213. The Examiner finds that Figure 1 of Osborn shows opposing
longitudinal side edges have a curved portion. Final Act. 4--5. The
Examiner considers that because Vega discloses that the Osborn articles are
suitable, "providing the lotion stripes of Vega to the article of Osborn would
predictably and successfully provide an article that reduces the adherence of
menses to human skin." Final Act. 5 (citing Vega, abstract). The Examiner
finds that although Vega does not disclose unevenly spaced stripes that
extend to longitudinal side edges, Virgilio does, and, thus, concludes that it
would have been obvious to one of ordinary skill in the art at the time the
invention was made to modify Vega's lotion stripes to be unevenly spaced
from one another and extend to the longitudinal side edges, "to provide
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Application 14/132,574
improved liquid handling characteristics ... , more comfort and superior
dryness ... and skin care benefits." Final Act. 8 (citing Virgilio ,r,r 12-14).
Appellants argue that Virgilio's figures do not show lotion stripes
"extending to the curved portions of the longitudinal edges." Br. 3.
Appellants assert that paragraph 77 of Virgilio on which the Examiner relies
"provides general statements such that it is not specific to lotion positioning
with respect to article geometry and features." Id. Appellants conclude that
the "rejections are impermissibly conclusory" because the Examiner does
not provide "evidence that the skilled artisan reviewing the applied art as a
whole would make the conclusions being purported in the Office Action."
Id. at 5.
The Examiner responds that Virgilio teaches that the longitudinal
stripes shown in the figures of Virgilio "can also be used for transverse
stripes." Ans. 3 (citing Virgilio ,r 80). According to the Examiner, because
"the stripes extend the full longitudinal length of the article in Figure 3 ...
one of ordinary skill in the art would have rationally and reasonably
concluded that the strip[ e ]s would obviously extend the full transverse width
of the article." Id. The Examiner states that because Virgilio discloses that
the stripes extend "over the 'full width' of the absorbent article ... applying
the pattern taught by Virgilio in Figure 3 to the article shown by Osborn in
Figure 1 ... would result in the claimed lotion application pattern having
lines of lotion which extend to the curved portions." Id. The Examiner
notes that the stripes of Virgilio are also unevenly spaced because Virgilio
discloses a plurality of lotion stripes separated by lotion free areas, "wherein
the first lotion free area is wider than the second lotion free area." Id. at 7
( citing Virgilio ,r,r 78, 80; Fig. 3). In response to Appellants' assertions that
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Application 14/132,574
the rejections are conclusory, the Examiner states that the Final Office
Action "provided reasoned articulation" supported by evidence as to why the
combined teachings of the references are proper, whereas Appellants
individually attacked Virgilio not the combination of references. Id.
Appellants' arguments are not persuasive because they are not
commensurate with the Examiner's rejection. Although the Examiner cites
to paragraph 77 of Virgilio, the Examiner also cites to Virgilio's paragraphs
78 and 80 as well as Figure 3 of Virgilio, none of which Appellants
adequately address. See Final Act. 5---6. Figure 3 of Virgilio shows a
plurality of longitudinal stripes extending to edges 46 and Virgilio defines
the stripe pattern as "a pattern having stripes extending in one direction over
the full length of the area defined by the outmost boundaries of the stripe
pattern." Virgilio ,r 41. Virgilio also discloses that the plurality of stripes
can be "oriented parallel with the transverse centerline ... for transverse
stripes." Virgilio ,r 80; see also Final Act. 5---6. We agree with the Examiner
that a plurality of stripes as depicted in Virgilio's Figure 3, but turned ninety
degrees and applied to Vega/Osborn's article having curved portions,
"would result in the claimed lotion application pattern having lines of lotion
which extend to the curved portions." Ans. 3. Specifically, the Examiner's
position that because Virgilio's Figure 3 "stripes extend the full longitudinal
length of the article ... and Virgilio explicitly suggests using the same
pattern oriented in the transverse direction, one of ordinary skill in the art
would have rationally and reasonably concluded that the strip[ e ]s would ...
extend the full transverse width of the article," is supported by a
preponderance of the evidence. Id.
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Application 14/132,574
Virgilio further discloses "first zone stripes (70) of relatively small
distance are employed, i.e.[,] the lotion free zones between the stripes (70)
have a relatively small width" and "adjacent to the narrow stripe zone there
is a second zone of stripes (70) having a larger distance." Virgilio ,r 78, Fig.
3; see also Ans. 7. Based on this disclosure, the Examiner's finding that
"Virgilio teaches providing a plurality of lotion stripes that are unevenly
spaced from one another," is supported by a preponderance of the evidence.
Final Act. 6.
Appellants' arguments that the Examiner's rejections are unsupported
and conclusory are also unavailing. The sum of Appellants' arguments are
produced below:
Br. 5.
While the current rejections are based on actual disclosure from
the applied art ( e.g., paragraph [0077] of Virgilio), the disclosure
is extremely broad and general in character, and is completely
silent regarding the specific features being recited in the claims.
There is no evidence that the skilled artisan reviewing the applied
art as a whole would make the conclusions being purported in
the Office Action.
As to the Examiner's proposal to combine the teachings of Osborn
with Vega, Vega discloses that "[a]s used herein, the terms 'pantyliner' or
'panti-liner' refer to absorbent articles ... worn by women between their
menstrual periods. Suitable absorbent articles are disclosed in, e.g., U.S. Pat.
No. 4,738,676 entitled 'Pantiliner' issued to Osborn on Apr. 19, 1988."
Vega ,r 28; see also Final Act. 5. Because Vega discloses that the Osborn
pantiliner is a suitable article to be used with the lotion composition of Vega,
a preponderance of the evidence supports the Examiner's position that
"providing the lotion stripes of Vega to the article of Osborn would
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Application 14/132,574
predictably and successfully provide an article that reduces the adherence of
menses to human skin." Final Act. 5. Appellants provide no persuasive
evidence to the contrary.
The Examiner's reason to modify Vega based on the disclosure of
Virgilio is also adequately supported. Virgilio discloses that "a lotion is
applied to such topsheets in a specific manner," including unevenly spaced
stripes applied to the edges of an article, "to provide an absorbent article,
which has improved liquid handling characteristics[,] ... is more
comfortable to wear[,] ... provides superior dryness[, and] ... contributes to
the wearing comfort of the article, for example by providing skin care
benefits." Virgilio ,r,r 1 and 12-14; see also Final Act. 8. The teaching of an
improved absorbent article comes directly from paragraphs 12-14 of
Virgilio, which Appellants do not address. Appellants' general discussion of
the disclosure of Virgilio and unsupported assertions are unavailing because
they do not identify any error in the Examiner's findings of fact or address
the specific rationales the Examiner articulated for combining the teachings
of the references.
For these reasons, we sustain the Examiner's rejection of claims
15-24 as unpatentable over Vega, Osborn, and Virgilio.
Claims 25-31
Independent claim 25 recites, in part, "wherein at least one of the third
lotion stripe and the fourth lotion stripe is longer than at least one of the first
lotion stripe and the second lotion stripe; and wherein the first lotion free
area is wider than the second lotion free area." Br. 9 (Claims App.).
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Appellants assert that paragraph 77 of Virgilio on which the Examiner
relies, does not disclose these limitations and, thus, Virgilio does not
"remedy the deficiency of Vega and Osborn." Br. 4. According to
Appellants, paragraph 77 of Virgilio discloses the opposite to that which is
recited because this passage "indicates the 'stripe pattern ... extending
uniformly over essentially the whole topsheet' (emphasis added)." Id. at 5.
Based on this, Appellants reiterate that the Examiner's "rejections are
impermissibly conclusory." Id.
Appellants' arguments are not persuasive because the portion of
paragraph 77 of Virgilio to which Appellants add emphasis relates to the
previously known stripe configuration. Specifically, Virgilio discloses that
"[h ]itherto it has been known ... to apply lotioned and lotion free area in
combination using stripes (e.g.[,] by roll-on application) such stripe pattern,
however, extending uniformly over essentially the whole top sheet area."
Virgilio ,r 77. In the additional portions of Virgilio on which the Examiner
relies, Virgilio applies a stripe pattern using first and second zone stripes
with the first zone of stripes having "lotion free zones between the stripes
(70) [that] have a relatively small width ... [and the] second zone of stripes
(70) having a larger distance." Virgilio ,r 78, Fig. 3; see also Final Act. 22.
Appellants' do not identify any error in the Examiner's findings. The
Examiner's finding that Virgilio teaches that "the first lotion free area is
wider than the second lotion free area" is supported by a preponderance of
the evidence. Final Act. 22.
The Examiner's finding that applying the teachings of Virgilio to the
Vega/Osborn combination provides stripes longer than other stripes is also
supported by a preponderance of the evidence. See Final Act. 21-23. The
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Application 14/132,574
Examiner finds that "applying the pattern taught by Virgilio in Figure 3" to
Osborn's Figure 1 with the stripes oriented with respect to the transverse
centerline (see Virgilio ,r 80) would result in the third lotion stripe and the
fourth lotion stripe being longer than the first lotion stripe and the second
lotion stripe "due to the shape of the article of Osborn." Final Act. 23.
Specifically, applying Virgilio's pattern to Vega/Osborn's article having
curved portions "would result in the claimed lotion application pattern
having lines of lotion which extend to the curved portions," because the
"stripes of lotion [extend] over the 'full width' of the ... article." Ans. 3.
Given that Osborn's article has a narrow middle and widens to the sides,
stripes applied thereto would have different lengths because the distances
between curved sides in the transverse direction are not equal. Final Act. 23.
The Examiner's findings are consistent with the Specification, because
Appellants' basis for the different lengths is based on the curved shape of the
article. See Br. 3; see also Spec. Fig. 4. Appellants do not provide
persuasive evidence or arguments to rebut the Examiner's findings. Further,
Virgilio's disclosure that an article having Virgilio's stripe pattern improves
the article (Virgilio ,r,r 12-14; see also Final Act. 8) provides support that the
Examiner's reasoning has rational underpinnings.
Accordingly, we sustain the Examiner's rejection of claim 25 as
unpatentable over Vega, Osborn, and Virgilio. Appellants make no
additional arguments for claims 26-31, which depend from claim 25. See
Br. 3-5. Accordingly, these claims fall with claim 25.
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Application 14/132,574
DECISION
The Examiner's decision to reject claims 15-31 is affirmed.
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)(l )(iv).
AFFIRMED
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