Ex Parte Gil et al

Patent Trial and Appeal BoardMar 25, 2015

12503364 (P.T.A.B. Mar. 25, 2015)

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. 12/503,364 07/15/2009 JunMo Gil 64488799US01 7974 23556 7590 03/25/2015 KIMBERLY-CLARK WORLDWIDE, INC. Patent Docketing 2300 Winchester Rd. NEENAH, WI 54956 EXAMINER WARDEN, JILL ALICE ART UNIT PAPER NUMBER 1773 MAIL DATE DELIVERY MODE 03/25/2015 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 JUNMO GIL, SEUNGRIM YANG, and XUEDONG SONG ____________ Appeal 2013-004639 Application 12/503,364 Technology Center 1700 ____________ Before BRADLEY R. GARRIS, CHUNG K. PAK, and GEORGE C. BEST, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–20. We have jurisdiction under 35 U.S.C. § 6. We affirm. Appellants claim a multiple-component material such as a disposable absorbent article (e.g., a diaper) which comprises a substrate and a color- changing composition comprising a water-insoluble, film-forming polymer and a water-insoluble particle having a charged colorant immobilized thereon (independent claims 1, 17, and 18). Appellants also claim a method of making such a material (independent claim 19). Appeal 2013-004639 Application 12/503,364 2 A copy of representative claim 1, taken from the Claims Appendix of the Appeal Brief, appears below. 1. A multiple-component material, the material comprising: a substrate and a film layer on the substrate, wherein the film layer includes a color-changing composition, the color- changing composition comprising: a water-insoluble, film-forming polymer; a pH adjuster; and a water-insoluble particle, wherein the water-insoluble particle has a charged colorant immobilized on it. On the ground of nonstatutory obviousness-type double patenting, the Examiner provisionally rejects claims 1 and 6–20 over claims 1–17 of copending Application No. 12/503,380 in view of Mao et al. (US 7,094,464 B2, issued Aug. 22, 2006) (hereinafter “Mao”) (Final Action 3) and provisionally rejects claims 1 and 5–20 over claims 1–10, 12–15, and 17–22 of copending Application No. 12/825,877 (id. at 4). Under 35 U.S.C. § 103(a), the Examiner rejects claims 1–10, 13, and 15–20 as unpatentable over Klofta ’532 et al. (US 7,159,532 B2, issued Jan. 9, 2007) (hereinafter “Klofta ’532”) in view of Klofta ’557 et al. (US 7,005,557 B2, issued Feb. 28, 2006) (hereinafter “Klofta ’557”) (id. at 5–7) and rejects claims 11, 12, and 14 as unpatentable over these references in combination with Liu (US 7,332,642 B2, issued Feb. 19, 2008) (id. at 7). Appellants contest the § 103 rejections only (Br. 4–7) but do not present separate arguments specifically directed to the dependent claims under these rejections (id. at 7). Therefore, the dependent claims rejected under § 103 will stand or fall with their parent independent claims, of which claim 1 is representative. Appeal 2013-004639 Application 12/503,364 3 We sustain the above rejections for the reasons given in the Final Action, the Answer, and below. Because they have not been contested in this appeal, we summarily sustain the Examiner’s provisional rejections on the ground of nonstatutory obviousness-type double patenting. As for the § 103 rejections, we agree with the Examiner that it would have been obvious to provide Klofta ’532 with the film-forming polymer of Klofta ’557 in order to improve comfort (see, e.g., Final Action 5–6). Appellants argue that there is no reason to combine these references because their respective compositions have different functions and because “comfort” is not an objective of either reference (Br. 5–6). According to Appellants, the film-forming compositions of Klofta ’557 are intended to be transferred to the skin of the wearer of the absorbent article whereas the wetness-indicating compositions of Klofta ’532 are not intended to come into contact with the skin of the wearer at all (id. at ¶ bridging 5–6). Appellants’ argument is not convincing. Contrary to Appellants’ apparent belief, Klofta ’557 teaches providing absorbent articles such as diapers (e.g., the absorbent articles taught by Klofta ’532) with a film- forming composition in order to avoid skin discomfort of the wearer (see, e.g., Klofta ’557 col. 1, ll. 22–33). Appellants also are incorrect in asserting that the wetness-indicating compositions of Klofta ’532 are not intended to come into contact with a wearer’s skin. Klofta ’532 expressly teaches that the wetness indicator may be applied to any one or a combination of structural components of an absorbent article including but not limited to the back-sheet, top sheet, etc. (col. 11, ll. 43–47). Regardless, the film-forming compositions of Klofta ’557 need not be placed on an absorbent article Appeal 2013-004639 Application 12/503,364 4 component which directly contacts the skin because the compositions may be transferred to the skin indirectly (col. 14, ll. 56–59). Appellants concede that the colorant of Klofta ’532 is immobilized on binding agents and that the component materials of the Klofta ’532 compositions are solid at room temperature (Spec. 2:11–20; see also Br. 6– 7). Moreover, Appellants do not contest the Examiner’s finding that the binding-agent matrix of Klofta ’532 is water-insoluble (Ans. 10). Nevertheless, Appellants argue “[t]here is no teaching of immobilizing a colorant on a particle [as required by claim 1]” (Br. 7). In light of Appellants’ concessions and the Examiner’s undisputed finding, the record of this appeal reflects that Klofta ’532 discloses a colorant immobilized on a water-insoluble matrix (e.g., of solid components). Appellants do not explain why the Klofta ’532 disclosure of a water-insoluble matrix does not teach or would not have suggested their claimed water-insoluble particle. In this regard, we observe that Appellants’ particles and the Klofta ’532 binding agents include common materials such as clays (cf. Spec. 8:27 and Klofta ’532 col. 6, l. 63). Under these circumstances, the argument under review lacks persuasive merit. 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. § 1.136(a). AFFIRMED cdc