Ex Parte Nishikawa et al

Patent Trial and Appeal BoardSep 20, 2018

13764954 (P.T.A.B. Sep. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/764,954 02/12/2013 27752 7590 09/24/2018 THE PROCTER & GAMBLE COMPANY Global IP Services Central Building, C9 One Procter and Gamble Plaza CINCINNATI, OH 45202 FIRST NAMED INVENTOR Masaharu Nishikawa 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. 12351M 1006 EXAMINER ANDERSON, CATHARINE L ART UNIT PAPER NUMBER 3778 NOTIFICATION DATE DELIVERY MODE 09/24/2018 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 MASAHARU NISHIKAWA, GARY DEAN LA VON, JACOB ALAN BARNHORST, and RONALD JOSEPH ZINK Appeal2018-000178 Application 13/764,954 Technology Center 3700 Before WILLIAM A. CAPP, JEFFREY A. STEPHENS, and LEE L. STEPINA, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants 1 seek our review under 35 U.S.C. Â§ 134(a) of the final rejection of claims 1-18 and 20 under 35 U.S.C. Â§ 103(a) as unpatentable over La Von (US 2011/0247199 Al, pub. Oct. 13. 2011). 2 We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 The Procter & Gamble Company is the Applicant and real party in interest. Br. 1. 2 A rejection under 35 U.S.C. Â§ 112, first paragraph, has been withdrawn. Final Action 3, Ans. 2. Appeal2018-000178 Application 13/764,954 THE INVENTION Appellants' invention relates to disposable diapers. Spec. 1, 11. 10-19. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. An array of taped and pant articles comprising: a first package comprising a taped article comprising a first chassis and a pair of discrete elastomeric side flaps in a taped rear waist region; wherein the elastic side flaps are joined to side edges of the first chassis, and wherein the elastic side flaps do not extend longitudinally beyond an end edge of the first chassis, and wherein the elastic side flaps comprise fasteners, and wherein the elastic side flaps are not folded along a transverse axis; a second package comprising a pant article comprising a second chassis and a first laterally continuous elastomeric belt in a pant front waist region and a second laterally continuous elastomeric belt in a pant rear waist region; wherein the first laterally continuous elastomeric belt comprises a first end edge and a second end edge and a folded edge that forms a portion of a waist opening of the pant article, and wherein the first end edge is disposed longitudinally outboard of the second end edge and longitudinally inboard of the folded edge; wherein a first portion the first end edge overlaps the second chassis from a first side edge of the second chassis to a second side edge of the second chassis, and wherein the first portion of the first end edge of the first laterally continuous elastomeric belt is joined to an interior surface of the second chassis, and wherein a second portion of the first end edge of the first laterally continuous elastomeric belt does not overlap the second chassis and is joined to an interior surface of the first laterally continuous elastomeric belt; wherein the second end edge overlaps the second chassis from the first side edge of the second chassis to the second side edge of the second chassis and is joined to an exterior surface of the second chassis; wherein the first and second laterally continuous elastomeric belts of the pant article are joined at side edges to 2 Appeal2018-000178 Application 13/764,954 form first and second side seams, wherein the first and second side seams do not overlap the second chassis; wherein the first and second laterally continuous elastomeric belts of the pant article are discrete from and joined to a garment-facing surface of the second chassis; wherein the second laterally continuous elastomeric belt has a longitudinal distance greater than a longitudinal distance of the first laterally continuous elastomeric belt at locations adjacent to the first and second side seams; wherein the first and second chassis have substantially the same longitudinal length, and wherein the taped and pant articles have different longitudinal lengths; and wherein the first and second chassis are at least substantially identical such that the first and second chassis have at least one identical component cross sectional order and disposition of a topsheet, backsheet, core, in at least one of the ( 1) taped and pant front waist regions, (2) taped and pant back waist regions, and (3) taped and pant crotch regions; and wherein the taped article is not preclosed and wherein the pant article is preclosed to form a waist opening and leg openmgs. OPINION Appellants argue claims 1-18 and 20 as a group. Appeal Br. 6-12. We select claim 1 as representative. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). At the outset, Appellants admit that La Von satisfies the limitation of claim 1 directed to elastic side flaps that "do not extend longitudinally beyond an end edge of the first chassis." Appeal Br. 8 ("none of La Von's flaps ... extend beyond the end edges of the chassis"). Similarly, Appellants admit that La Von satisfies the limitation directed to elastic side flaps that "are not folded along a transverse axis." Id. ("none of the flaps would be folded over a transverse axis"). With respect to the remaining limitations, the Examiner finds that La Von discloses the invention 3 Appeal2018-000178 Application 13/764,954 substantially as claimed except for a laterally continuous belt discrete from the chassis, for which the Examiner relies on Kuwano. Final Action 4--5. The Examiner concludes that it would have been obvious to a person of ordinary skill in the art at the time the invention was made to provide the pant article of La Von with a discrete belt as taught by Kuwano. Id. at 5. According to the Examiner, a person of ordinary skill in the art would have done this to provide improved comfort. Id. at 5-6. The Examiner further finds that, when La Von's article is modified to include the belt portions of Kuwano, the pant article is longer and, therefore, different from the taped article. Id. at 6. The Examiner notes that La Von, as modified by Kuwano, lacks first and second packages as claimed, but finds that using two separate packages for two different types of articles is known in the art. Id. The Examiner concludes that it would have been obvious to a person of ordinary skill in the art at the time the invention was made to provide first and second packages as claimed. Id. According to the Examiner, a person of ordinary skill in the art would have done this to achieve the predictable result of protecting the articles prior to use. Appellants argue that the Examiner's reason for making the proposed combination is "generic," and fails to explain why a person of ordinary skill in the art would have made the equipment and processes between the tapes and pant articles "more different." Br. 7. According to Appellants, "La Von is about keeping equipment and processes the same." Id. at 7-8. Appellants argue that the Examiner fails to "explain what would motivate a person having ordinary skill in the art to complicate the equipment and processes of La Von after studying the desired efficiencies of overlapping machinery and processes." Id. at 8. 4 Appeal2018-000178 Application 13/764,954 Similarly, Appellants argue that the Examiner's final action fails to show how the claimed belts can be added to the waist of La Von's chassis "without adding machinery, processes, and transformations different from the machinery, processes, and transformations used to add flaps to La Von's taped chassis." Id. at 10. Appellants also argue that the Examiner's final action fails to show how joining elastomeric belts as claimed would not add extra folding processes that would purportedly be needed to join Kuwano's belts and La Von's pant chassis, stating: Id. One of ordinary skill in the art would recognize that adding Kuwano's belts to La Von's pant chassis would make La Von's pant article significantly different than La Von's taped article and would make the machinery, processes, and transformations much different between La Von's taped and pant articles. In response to Appellants' "complicate the equipment" argument, the Examiner points out that economic considerations such as increased cost or time associated with a more complex production line, would not prevent a skilled artisan from making a modification. Ans. 3. In this case, we agree. "That a given combination would not be made by businessmen for economic reasons does not mean that persons skilled in the art would not make the combination because of some technological incompatibility. Only the latter fact would be relevant." In re Farrenkopf, 713 F.2d 714, 718 (Fed. Cir. 1983). Appellants provide neither evidence nor persuasive technical reasoning that performing the proposed modification requires more than ordinary skill. Appellants next argue that the Examiner errs in finding that La Von discloses first and second chassis that are at least substantially identical. Br. 10. In response, the Examiner points out that Appellants expressly 5 Appeal2018-000178 Application 13/764,954 defined "substantially identical" in the Specification. Ans. 3, citing Spec. p. 7, 11. 19--21. The cited portion of the Specification provides that: "Substantially identical" means the objects being compared have such close 20 resemblance as to be essentially the same - as understood by one having ordinary skill in the art. "At least substantially identical" encompasses "identical." Spec. p. 7. The Examiner explains that La Von discloses the same chassis, on the same production line, that then can be used to make either a pant-type diaper or a taped diaper. Ans. 3--4. The Examiner directs our attention to paragraph 13 5 and Figure 8C of La Von as teaching that the chassis are formed before the diaper is transformed into a pant-type or a taped diaper. Id. at 4. "The flowchart of Fig. 8C shows a common chassis being formed, and then transformed into either a pant-type or taped diaper. La Von therefore discloses forming either a pant-type or taped diaper from substantially identical chassis." Id. La Von is directed to an apparatus for making diapers that is convertible from making pant diapers to making taped diapers. La Von, Abstract. La Von teaches that: Although pant and taped diapers may have distinct different features and components, it is to be appreciated that taped and pant diapers may include many features and components that are substantially the same or similar with regard to disposition, structure, dimension, physical appearance, etc. Id. ,r 56 (emphasis added); see also ,r,r 110, 111. La Von explains that, of the 50 transformations utilized in the second (pant diaper) configuration, 48 of those transformations, i.e., 96%, are the same as the transformations utilized in the first ( taped diaper) configuration. Indeed, Appellants' own Specification readily admits that La Von discloses: 6 Appeal2018-000178 Application 13/764,954 suitable converting lines capable of producing taped and pant articles of the current disclosure. These converting lines utilize a substantial number of the same processes and machinery to produce both taped and pant articles having the same or similar chassis. Spec. p. 28, 11. 13-20 (emphasis added). Thus, the Examiner's position is well supported by the record and Appellants' argument to the contrary is contradicted by their own, unequivocal admission. Br. 11. Finally, Appellants' argument that the Examiner's reason for combining is "generic" does not apprise us of Examiner error. Br. 7. A motivation to combine can be found in "any need or problem known in the field of endeavor at the time of [the] invention and addressed by the patent." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007). "[T]he analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." Id. at 418. Here, the Examiner's stated reason, i.e., "improved comfort," is sufficient to support the rejection. In view of the foregoing, we sustain the Examiner's unpatentability rejection of claims 1-18 and 20 over La Von and Kuwano. DECISION The decision of the Examiner to reject claims 1-18 and 20 as unpatentable over La Von and Kuwano 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)(l )(iv). AFFIRMED 7