Ex Parte Nishikawa et alDownload PDFPatent Trial and Appeal BoardNov 26, 201813764964 (P.T.A.B. Nov. 26, 2018) Copy Citation 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; 2 Appeal2018-003036 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). 3 Appeal2018-003036 Application 13/764,964 (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 4 Appeal2018-003036 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). 5 Appeal2018-003036 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 6 Appeal2018-003036 Application 13/764,964 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 7 Appeal2018-003036 Application 13/764,964 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 8 Appeal2018-003036 Application 13/764,964 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 9 Appeal2018-003036 Application 13/764,964 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 10 Copy with citationCopy as parenthetical citation