Ex Parte Hammons et al

Patent Trial and Appeal BoardFeb 11, 2016

11880931 (P.T.A.B. Feb. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111880,931 0712512007 27752 7590 02/16/2016 THE PROCTER & GAMBLE COMPANY Global Patent Services - Legal IP Central Building, CS One Procter and Gamble Plaza CINCINNATI, OH 45202 FIRST NAMED INVENTOR John Lee Hammons 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. 10840Q 8714 EXAMINER HANRAHAN, BENEDICT L ART UNIT PAPER NUMBER 3761 NOTIFICATION DATE DELIVERY MODE 02/16/2016 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 JOHN LEE HAMMONS, SYBILLE FUCHS, JODY LYNN HOYING, TIMOTHY IAN MULLANE, CASANDRE MAFFETT WALSH, PHILIP ANDREW SA WIN, DONNA MARIE CAUDILL, and NAOMI RUTH NELSON Appeal2013-010229 Application 11/880,931 Technology Center 3700 Before LYNNE H. BROWNE, JAMES J. MAYBERRY, and RICHARD H. MARSCHALL, Administrative Patent Judges. MAYBERRY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE John Lee Hammons et al. (Appellants) seek our review under 35 U.S.C. Â§ 134 of the Examiner's rejections of claims 1-20. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. Appeal2013-010229 Application 11/880,931 CLAIMED SUBJECT MATTER The claims are directed to a topsheet for an absorbent article. Spec. 1 :4. Claims 1 and 11 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An absorbent article comprising a topsheet comprising a lotion zone, said top sheet having a longitudinal centerline and a transverse centerline, said topsheet having an area; wherein said lotion zone has a periphery, a length, and a long axis, said length being a maximum straight-line dimension between two points on said periphery, said long axis extending between two points on said periphery separated by said length; wherein said periphery is not symmetric about an axis parallel to said longitudinal centerline; wherein said periphery of said lotion zone is asymmetric to said longitudinal centerline and said transverse centerline; wherein said lotion zone comprises more than about 5% of said area of said top sheet; and wherein said lotion zone comprises a lotion. Br. 6, Claims App. REJECTIONS I. Claims 1-5, 7, 9, and 11-20 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Noel (US 2006/0184150 Al, published Aug. 17, 2006) and Maeyama (JP2005-278885 A, published Oct. 13, 2005). II. Claim 6 stands rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Noel, Maeyama, and Roe (US 6,498,284 Bl, issued Dec. 24, 2002). 2 Appeal2013-010229 Application 11/880,931 Ill. Claims 8 and 10 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Noel, Maeyama, and Christon (US 2003/0114811 Al, published June 19, 2003). ANALYSIS Rejection I Appellants argue claims 1-5, 7, 9, and 11-20 as a group. Br. 3--4. We select claim 1 as representative of this group and claims 2-5, 7, 9, and 11-20 stand or fall with claim 1. See 37 C.F.R. Â§ 41.37(c)(l)(iv) (2015). Claim 1 recites, in relevant part, "a top sheet comprising a lotion zone, said top sheet having a longitudinal centerline and a transverse centerline, said topsheet having an area; wherein said lotion zone has a periphery." Br. 6, Claims App. As to the periphery of the lotion zone, claim 1 further recites "wherein said periphery is not symmetric about an axis parallel to said longitudinal centerline; [and] wherein said periphery of said lotion zone is asymmetric to said longitudinal centerline and said transverse centerline." Id. The Examiner finds that Noel discloses much of the subject matter of claim 1. See Final Act. 2-3 (referencing Noel's Figure 2 and paragraph 18). The Examiner further finds that Noel teaches that lotion may be applied to a topsheet in discrete zones. Id. at 3; see also Noel i-f 18 ("Lotion 22 can be applied by means known in the art in any pattern known in the art. For example, lotion 22 can be applied as beads, bands, stripes, and continuous coatings."). The Examiner also finds that Maeyama discloses that lotion may be applied to a topsheet of an absorbent article in discrete patterns to reduce leakage. Final Act. 3--4. The Examiner finds that Maeyama's Figures 9A, 3 Appeal2013-010229 Application 11/880,931 9B, 9D, and 9F) illustrate lotion patterns that result in a lotion zone with an asymmetric periphery as required in claim 1. Id.; see also Answer 19 (depicting the lotion zone resulting from the Examiner's proposed modification of Noel). The Examiner determines that "it would have been obvious to one of ordinary skill in the art ... to modify[] Noel's reference, to include asymmetrical lotion zones, as suggested and taught by Maeyama, for the purpose of ensuring there are no leakages and to obtain the best absorbency possible for the article." Final Act. 4. Appellants first argue that Noel discloses a symmetrical lotion zone, which teaches away from an asymmetrical zone. Br. 4. "A reference may be said to teach away when a person of ordinary skill, upon reading the reference ... would be led in a direction divergent from the path that was taken by the applicant." In re Haruna, 249 F.3d 1327, 1335 (Fed. Cir. 2001) (quoting Tee Air, Inc. v. Denso Mfg. Mich. Inc., 192 F.3d 1353, 1360 (Fed. Cir. 1999)); see, e.g., In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (holding that, to teach away, the prior art must "criticize, discredit, or otherwise discourage the solution claimed"). Appellants fail to identify any teaching in Noel that criticizes, discredits, or otherwise discourages an asymmetrical lotion zone. Accordingly, Appellants do not inform us of Examiner error. Appellants next argue that Maeyama "merely illustrate[ s] alternative repeating patterns of the lotion and not the periphery of a zone of the same lotion pattern as applied to an absorbent article and how the lotion zone is positioned with respect to the article's longitudinal and transverse centerlines." Br. 4. Appellants' argument does not inform us of Examiner error, as it argues against Maeyama individually and ignores the Examiner's 4 Appeal2013-010229 Application 11/880,931 proposed combination, which uses the teachings of Maeyama to modify Noel's lotion zone. "Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (emphasis added). As the Examiner determines, modifying Noel's lotion zone 22 with the lotion patterns of Maeyama, such as the pattern disclosed in Maeyama's Figure 9D, results in a lotion zone with an asymmetrical periphery as required by claim 1. See Final Act. 15; see also Answer 19 (depicting the lotion zone resulting from the Examiner's proposed modification ofNoel). 1 Indeed, Noel expressly teaches applying lotion in bands or stripes as illustrated by Maeyama. See Noel i-f 18. For the reasons above, we sustain the rejection of claim 1, and claims 2-5, 7, 9, and 11-20, which fall with claim 1, under 35 U.S.C. Â§ 103(a) as being unpatentable over Noel and Maeyama. Rejections II and III In traversing Rejections II and III, Appellants rely on their arguments for claim 1. Br. 4--5. As discussed above in connection with our analysis of Rejection I, we find Appellants' arguments unpersuasive of Examiner error as to claim 1. Accordingly, we sustain the Examiners rejection of claim 6 under 35 U.S.C. Â§ 103(a) as being unpatentable over Noel, Maeyama, and Roe and 1 As the Examiner further finds, each individual portion of lotion illustrated in Maeyama's Figures 9D could be considered a lotion zone, each of which includes a periphery that satisfies the asymmetrical claim limitations. See Answer 19-20. 5 Appeal2013-010229 Application 11/880,931 the Examiner's rejection of claims 8 and 10 under 35 U.S.C. Â§ 103(a) as being unpatentable over Noel, Maeyama, and Christon. DECISION We affirm the Examiner's rejection of claims 1-20. 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)(l )(iv). AFFIRMED rvb 6