Ex Parte Nishikawa et al

Patent Trial and Appeal Board

Nov 26, 2018

13764964 (P.T.A.B. Nov. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/764,964 02/12/2013
27752 7590 11/28/2018
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.
12352M 4980
EXAMINER
ANDERSON, CATHARINE L
ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
11/28/2018 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 ZINK1
Appeal2018-003036
Application 13/764,964
Technology Center 3700
Before DANIELS. SONG, JEFFREY A. STEPHENS, and
LEE L. STEPINA, Administrative Patent Judges.
SONG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
Final Office Action ("Final Act.") rejecting claims 1-19 and 21-23 in the
present application (Br. 2). We have jurisdiction under 35 U.S.C. §§ 6(b)
and 134(a).
We AFFIRM.
1 The Appellant is the Applicant, The Procter & Gamble Company, which is
identified as the real party in interest ( Appeal Brief ("Br.") 1 ).
Appeal2018-003036
Application 13/764,964
The claimed invention is directed to absorbent articles, and in
particular, to an array of taped and pant absorbent articles (Spec. 1, Field of
the Invention). Representative independent claim 1 reads as follows (Br.
17-18, Claims App'x, emphasis added):
1. An array of taped and pant articles comprising:
a first package comprising a taped article comprising a
first chassis, wherein the first chassis comprises a waistband
disposed inwardly of a backsheet of the first chassis, wherein the
waistband is discrete from the first chassis;
wherein laterally opposed back flaps are joined to side
edges of the first chassis, and wherein the back flaps do not
extend longitudinally beyond an end edge of the first chassis, and
wherein the back flaps comprise fasteners, and wherein the back
flaps are not folded along a transverse axis;
a second package comprising a pant article comprising a
second chassis, wherein pant article comprises a first belt joined
to an exterior surface of the second chassis and is discrete from
the second chassis;
wherein the first 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 belt is joined to an interior
surface of the second chassis, and wherein a second portion of
the first end edge of the first belt does not overlap the second
chassis and is joined to an interior surface of the first 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;
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Application 13/764,964
wherein the first and second chassis are at least
substantially identical such that the first and second chassis
comprise at least one of the same core width and the same core
length;
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 taped article is not preclosed and wherein the
pant article is preclosed to form a waist opening and leg
openmgs.
Independent claim 19 is directed to similar subject matter (Br. 20,
Claims App'x).
REJECTION2
The Examiner rejects claims 1-19 and 21-23 under 35 U.S.C. § 103
as obvious over La Von et al. (US 2011/0247199 Al, pub. Oct. 13, 2011) in
view ofKuwano et al. (US 2011/0077609 Al, pub. Mar. 31, 2011) (Final
Act. 4).
ANALYSIS
Only those arguments actually made by the Appellant have been
considered in this decision. Arguments that the Appellant could have made
but chose not to make have not been considered and are deemed to be
waived. See 37 C.F.R. § 4I.37(c)(l)(iv); In re Jung, 637 F.3d 1356, 1365-
66 (Fed. Cir. 2011); Ex parte Frye, 94 USPQ2d 1072, 1075-76 (BPAI 2010
2 The Examiner's rejection of the claims under 35 U.S.C. §112, first
paragraph, has been withdrawn in the Answer (Ans. 2, 4).
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(precedential)). The Appellant argues independent claims 1 and 19 together
and does not submit separate arguments directed to the dependent claims.
Accordingly, all of the claims stand or fall together.
The Examiner finds that La Von discloses most of the limitations of
claim 1, but concedes that La Von fails to disclose the recited belt (Final Act.
5). The Examiner relies on Kuwano for disclosing a pant article having the
recited belt missing in the article of La Von, and concludes that it would have
been obvious to a person of ordinary skill in the art to provide the pant
article of La Von with the belt of Kuwano "to provide improved comfort to
the wearer of the article." (Final Act. 5). The Examiner further explains that
when the article of La Von is modified to include the belt portions
of Kuwana [sic], which extend beyond the end edges of the
chassis, as shown in [F]igure 2 of Kuwana [sic], the longitudinal
length of the pant article will then be different than the
longitudinal length of the taped article.
(Final Act. 6).
The Examiner further finds that La Von does not disclose a first
package comprising the taped article and a second package article
comprising a pant article, but concludes that use of two separate packages
for two different types of articles would have been obvious to a person of
ordinary skill in order "to provide protection of the articles prior to use and
to allow the consumer to choose the package containing the desired type of
article." (Final Act. 6). The Examiner's rejection of independent claim 19
is substantially similar to that of claim 1 (Final Act. 7-9).
The Appellant argues that the Examiner failed to explain "why a
person of ordinary skill in the art would make the equipment and processes
( and thus, transformations) between the taped and pant articles of La Von
more different when La Von is about keeping the equipment and processes
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Application 13/764,964
the same," or "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 of La Von."
(Br. 8-9). According to the Appellant, "[ o ]ne 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," such that additional "machinery, processes, and transformations"
would have to be added or changed in order to allow for La Von's system to
be used to make such a pant article (Br. 10-11 ).
These arguments are unpersuasive. First, it is clear from the claim
language that the claimed invention is directed to an "array"3 of
manufactured taped articles and pant articles having the recited comparative
dimensions of the components, and packages thereof, and not to a process
for manufacturing such products. As such, regardless of the process
specifically disclosed in La Von, in view of the Examiner's articulated
3 In its relevant portions, the Specification uses term "array" in three
different instances as follows:
"This invention relates to absorbent articles comprising
substantially identical chassis and more particularly to an array of
taped and pant absorbent articles comprising substantially identical
chassis." (Spec. 1, 11. 10-12);
"In one embodiment, an array of taped and pant articles of the
present disclosure may comprise a first and second package of
absorbent articles." (Spec. 2, 11. 5-6); and
"Taped and pant absorbent articles as disclosed herein may be
manufactured by the same company on the same manufacturing
line and may sold in an array." (Spec. 7, 11. 31-32).
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Application 13/764,964
rational reason for providing the belt of Kuwano in the pant article of
La Von, the claims are satisfied as long as a preponderance of the evidence
supports the finding that La Von discloses the substantially identical chassis
for its taped article and its pant article. We determine that La Von does make
such a disclosure for the reasons elaborated below in addressing the
Appellant's arguments.
Specifically, the Appellant's arguments are unpersuasive regardless of
the fact that the claims are actually directed to an array of articles, because
La Von itself demonstrates that the art recognizes the benefit and desirability
of adding "machinery, processes, and transformations" in order to
manufacture both taped and pant articles (La Von, Abstract). La Von's
teaching is not "about keeping the equipment and processes the same" as
asserted by the Appellant, but rather, is directed to providing a flexible
manufacturing line that allows for production of taped articles and pant
articles. Such a flexible manufacturing line requires additional "machinery,
processes, and transformations" as compared to a manufacturing line that
produces only taped articles or pant articles (see La Von Figs. 8C and 9).
Such flexible manufacturing lines further "complicate the equipment and
processes" as compared to lines that manufacture only one type of article
(see La Von, Figs. 8-10 and disclosure related thereto). Despite associated
expenses, the benefits of implementing such changes that allow for flexible
production of more than one type of product are clearly described in La Von
itself (La Von ,r,r 5-11 ).
Furthermore, as the Examiner finds,
economic infeasibility (i.e. increased cost or time associated with
a more complex production line) would not prevent one of
ordinary skill in the art from making a modification ( see MPEP
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2145(VII)). The additional steps or machinery required to
produce the modified article of La Von would not discourage one
of ordinary skill in the art from seeking the improved comfort
provided by the inclusion of the waist belt of Kuwana [sic].
(Ans. 3). See also Orthopedic Equip. Co., Inc. v. United States, 702 F.2d
1005, 1013 (Fed. Cir. 1983) ("the fact that the two disclosed apparatus
would not be combined by businessmen for economic reasons is not the
same as saying that it could not be done because skilled persons in the art
felt that there was some technological incompatibility that prevented their
combination. Only the latter fact is telling on the issue of
nonobviousness."). We see no basis, nor does the Appellant establish,
technological difficulty in modifying the manufacturing line of La Von,
much less the articles actually claimed.
Relatedly, the Appellant points out that, in La Von, the flaps "are
joined to the side edges of the chassis, whether it is a taped or pant article,"
and "none of La Von's flaps illustrated by La Von extend beyond the end
edges of the chassis (lines have been inserted to illustrate this) and none of
the flaps are folded and none of the flaps would be folded over a transverse
axis." (Br. 9, reproducing La Von, Figs. IA, 2, 3 adjacent to each other).
However, this argument is not persuasive because the rejection relies on the
belt disclosed in Kuwano, and "[ n ]on-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references." In re Merck, 800 F .2d 1091,
1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413,425 (CCPA 1981).
Moreover, as the Examiner also explains, "[ w ]hile no such configuration is
shown in the figures of La Von, La Von discloses in paragraphs [0079-0088]
various possible embodiment and configurations for the pant article, thus
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showing that La Von contemplates configurations beyond just those shown in
the exemplary figures." (Ans. 3). In that regard, the Examiner points out
that La Von contemplated configurations having waist belts that extend
beyond the edges of the chassis in disclosing various prior art pant article
configurations, including U.S. Patent Publication 2008/0107861, "which
shows a pant diaper having a waist belt that extends beyond the end edges of
the chassis (see Fig. 5A), and a pant diaper having a waist belt including a
portion on the interior surface of the waistband ( see Fig. 4, element 4 7 4 ). "
(Ans. 3, citing La Von ,r 88). Indeed, the Specification of La Von also
discloses that "[t]aped and pant diapers may include multiple components
which may have different longitudinal, machine direction, extents as well as
different lateral, cross machine direction, extents." (La Von ,r 99).
The Appellant further argues that the Examiner incorrectly finds that
La Von discloses first and second chassis that are "at least substantially
identical" as recited by claim 1 (Br. 11-12). According to the Appellant,
although La Von uses the same process steps as shown in Figure 8C to
produce its taped and pant chassis, "the same ( even identical) machines and
processes can produce drastically different chassis." (Br. 12). In that
regard, the Appellant points out that the step of "Absorbent Core
Calendaring" may produce a core with 20 or 40 grams of absorbent
materials, and the "Acquisition Layer Cutting" step may produce a layer that
is 50 or 120 mm long (Br. 12).
The Examiner notes that the Specification defines "substantially
identical" as "objects being compared to have such close resemblance as to
be essentially the same." (Ans. 4, citing Spec. 7, 11. 19-21 ). Accordingly,
the Examiner finds that
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La Von discloses producing the same chassis 102, as shown in
Fig. 1 and 3, on the same production line, which is then able to
produce from the standard chassis 102 either a pant-type diaper
or a taped diaper. La Von discloses in paragraph [0135] and Fig.
8C that the steps of forming the chassis are performed prior to
transforming the diaper into a pant-type or taped diaper.
Therefore La Von discloses the use of a substantially identical
chassis for both the pant and taped articles, which would have
both the identical chassis length and component cross-sectional
order and disposition ( see Fig. 1 and 3 for identical disposition
of a topsheet 138, backsheet 126, and core 142).
(Ans. 4).
We agree with the Examiner. As the Examiner explains, "[t]he
flowchart of Fig. 8C [ of La Von] shows a common chassis being formed, and
then transformed into either a pant-type or taped diaper," thereby disclosing
a substantially identical chassis for the pant or taped type of article (Ans. 4).
In addition, La Von utilizes the same numerals to identify the chassis of the
taped article shown in Figure 1, as well as the chassis of the pant article
shown in Figure 3 (La Von, Figs. 1, 3). Furthermore, in describing these
articles in the text of its Specification, La Von again uses the same numerals,
and does not describe that the chassis of these articles are any different (see,
e.g. La Von ,r 55). Moreover, the figures of La Von appear to disclose
substantially identical chassis for the pant or taped type article as the term
"substantially identical" is defined by the Appellant (La Von, Figs. 1, 3).
Therefore, the preponderance of the evidence supports the Examiner's
position.
Moreover, as to the Appellant's assertion that the same machines and
processes can produce "drastically different chassis" such as a core with 20
or 40 grams of absorbent materials, or layer that is 50 or 120 mm long (Br.
12), we observe that the Appellant does not direct us to where the La Von
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discloses the noted examples of variation in the core material or length of
acquisition material. More significantly, even if La Von's line can be used to
manufacture articles with different amount of core material or length of
acquisition material appears, this is likely pertinent to the fact that
differently sized articles can be manufactured, not that the chassis of each
taped article must be different than that of a pant article (see La Von ,r 61
("The size of the backsheet 136 may be dictated by the size of the absorbent
core 142 and/or particular configuration or size of the diaper 100T and
lOOP.")). Finally, even if La Von was somehow understood to disclose
manufacture of taped articles and pant articles having different chassis, that
supports the conclusion of obviousness of using the same line to
manufacture taped articles and pant articles having the same chassis as a
logical application.
Therefore, the evidence of record indicates that the invention recited
in claim 1 would have been obvious and unpatentable over La Von in view of
Kuwano, and we affirm the Examiner's rejection thereof. The remaining
claims fall with claim 1.
CONCLUSIONS
The Examiner's rejection of claims 1-19 and 21-23 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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