Ex Parte Schroeder et al

Patent Trial and Appeal BoardApr 26, 2016

12872190 (P.T.A.B. Apr. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/872, 190 08/31/2010 23556 7590 04/26/2016 KIMBERLY-CLARK WORLDWIDE, INC, Patent Docketing 2300 Winchester Rd. NEENAH, WI 54956 FIRST NAMED INVENTOR Karyn Clare Schroeder 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. 64640160US02 3127 EXAMINER PHILIPS, BRADLEY H ART UNIT PAPER NUMBER 3778 MAILDATE DELIVERY MODE 04/26/2016 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 KARYN CLARE SCHROEDER, GARRY ROLAND WOLTMAN, DAVID MARTIN JACKSON, DAVID AR THUR FELL, KATHRYN LYNN VEITH, and TAMMY JOY NETTEKOVEN Appeal2014-004909 Application 12/872, 190 Technology Center 3700 Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and JACQUELINE T. HARLOW, Administrative Patent Judges. PER CURIAM DECISION ON APPEAL This is an appeal1under35 U.S.C. Â§ 134 involving claims to an absorbent composite with a resilient coform layer. The Examiner rejected the claims as obvious. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 Appellants identify the Real Party in Interest as Kimberly-Clark Worldwide, Inc. (see Br. 1). Appeal2014-004909 Application 12/872, 190 Statement of the Case Background Appellants' invention relates to "combining resilient coform with other materials to deliver enhanced resiliency and absorbency properties" (Spec. 2:27-30). The Claims Claims 1-19, 21, and 22 are on appeal. Independent claim 1 is representative and reads as follows (emphasis added): 1. An absorbent composite disposed in an absorbent article between a topsheet and a backsheet, the absorbent composite compnsmg: a first intake layer disposed between the topsheet and the backsheet; and a retention layer disposed between the topsheet and the backsheet, wherein one of the first intake layer and the retention layer includes a resilient coform material. The Issues A. The Examiner rejected claims 1-9, 11-19, and 21under35 U.S.C. Â§ 103(a) as obvious over Zenker,2 Ko, 3 and Ng4 (Ans. 2-9). B. The Examiner rejected claim 10 under 35 U.S.C. Â§ 103(a) as obvious over Zenker, Ko, Ng, and Makoui5 (Ans. 9-10). 2 Zenker et al., US 6,245,051 Bl, issued June 12, 2001. 3 Ko et al., US 2003/0113463 Al, published June 19, 2003. 4 Ng et al., US 2008/0119103 Al, published May 22, 2008. 5 Makoui et al., US 6,127,595, issued Oct. 3, 2000. 2 Appeal2014-004909 Application 12/872, 190 C. The Examiner rejected claim 22 under 35 U.S.C. Â§ 103(a) as obvious over Zenker, Ko, Ng, and Keuhn6 (Ans. 10-11). Because the same issue is dispositive for all three rejections, we will consider them together. The Examiner finds that Zenker discloses an absorbent composite ( 48, 52) disposed in an absorbent article between a topsheet (28) and a backsheet (30), the absorbent composite comprising: a first intake layer (52) disposed between the topsheet and the backsheet (Fig. 10, c. 27: 1-5; see also Fig. 3, Fig. 4); and a retention layer (48) disposed between the topsheet and the backsheet (Fig. 3), wherein one of the first intake layer and the retention layer includes a coform material ( c. 10: 40-50; c. 26: 1--40). (Ans. 2-3.) The Examiner acknowledges that "Zenker does not disclose that the intake layer and/or retention layer comprise a resilient coform layer, which [A ]ppellant has given the special definition of a matrix of meltblown fibers and an absorbent material" (id. at 5). The Examiner concludes that it would have been obvious to "form the absorbent fibrous web composite, and adjusting, varying and optimizing the amounts of absorbent and thermoplastic fibers, as it is within the level of ordinary skill to determine suitable amounts of absorbent fibers and thermoplastic fibers, based on the desired absorbency and strength suitable for the desired application" and to "modify the coform intake and retention layers ( 48, 52) of Zenker by the ranges taught in Ko" (id. at 6). The Examiner also concludes that it would have been obvious to "modify the 6 Keuhn, JR. et al., US 2003/0149411 Al, published Aug. 7, 2003. 3 Appeal2014-004909 Application 12/872,190 thermoplastic composition of Ko according to the ranges taught in Ng" (id. at 7). The issue with respect to these rejections is: Does the evidence of record support the Examiner's conclusion that Zenker, Ko, and Ng render the claims prima facie obvious? Findings of Fact 1. Zenker' s Figure 3 is reproduced below: 10 \ FIG. 3 Zenker' s Figure 3 shows an article (10) [that] includes a backsheet layer (30); a liquid permeable top sheet layer (28); and an absorbent structure (32) sandwiched between the backsheet and topsheet layers. The absorbent structure includes a retention portion ( 48) having a first retention section ( 47) and a longitudinally opposed second retention section ( 49). A liquid distribution, waist belt component (52) has a belt first end region (54), a belt second end region (56) and a belt medial region (58) interconnecting the belt first and second end regions. (Zenker Abstract; see also Ans. 2-3, 5.) 2. Zenker teaches that [t]he absorbent body structure 32 can comprise a matrix of hydrophilic fibers, such as a web of cellulosic fluff, mixed with particles of high-absorbency material. In particular arrangements, the absorbent body 32 may comprise a mixture of 4 Appeal2014-004909 Application 12/872, 190 superabsorbent hydrogel-fonning particles and synthetic polymer meltblown fibers, or a mixture of superabsorbent particles with a fibrous coform material comprising a blend of natural fibers and/or synthetic polymer fibers. (Zenker 10:41--48; see also Ans. 2-3, 5.) 3. Zenker teaches that "[t]he distribution layer can be a coform, a bonded carded web, an airlaid web or a wetlaid pulp structure composed of natural and/or synthetic fibers" (Zenker 26:13-15; see also Ans. 2-3, 5). 4. Ko teaches a web [that] may be a nonwoven web, for instance, and contains about 25-100% by weight of absorbent and/ or other hydrophilic fibers and about 0-75% by weight of thermoplastic fibers, suitably about 50-100% by weight absorbent and/or other hydrophilic fibers and about 0-50% by weight thermoplastic fibers, desirably about 60-90% by weight absorbent and/or other hydrophilic fibers and about 10--40% by weight thermoplastic fibers. (Ko ii 32; see also Ans. 5-6.) 5. Ko teaches that [ w ]hen thermoplastic fibers are employed, they may include meltblown fibers. The meltblown fibers may be formed from thermoplastic polymers including, without limitation, polyolefins, . . . Suitable polyolefins include without limitation polyethylene, polypropylene, polybutylene, copolymers of ethylene with other alpha-olefins, copolymers of propylene with other alpha-olefins, copolymers of butylene with other alpha- olefins, and combinations thereof. (Ko ii 34; see also Ans. 5-6.) 6. Ng teaches that [a ]lthough not necessarily required, linear polyethylene "plastomers" are particularly desirable in that the content of a- olefin short chain branching content is such that the ethylene 5 Appeal2014-004909 Application 12/872, 190 copolymer exhibits both plastic and elastomeric characteristics- i.e., a "plastomer." Because polymerization with a-olefin comonomers decreases crystallinity and density, the resulting plastomer normally has a density lower than that of polyethylene thermoplastic polymers (e.g., LLD PE), but approaching and/or overlapping that of an elastomer. For example, the density of the polyethylene plastomer may be about 0.91 grams per cubic centimeter (g/cm3) or less, in some embodiments from about 0.85 to about 0.88 g/cm3 (Ng ii 34; see also Ans. 6-7.) 7. Ng teaches that [t]he propylene content of such copolymers may be from about 60 mole % to about 99.5 wt. %, ... The a-olefin content may likewise range from about 0.5 mole% to about 40 mole%, Although the density of the propylene-based polymer employed in the present invention may vary, it is typically about 0.91 grams per cubic centimeter (g/cm3) or less, . . . The melt flow rate of the propylene-based polymer may also be selected within a certain range to optimize the properties of the resulting elastic material. (Ng ii 37; see also Ans. 6-7.) 8. Ng teaches that [t]he strands and the meltblown web may contain a thermoplastic elastomer, semi-crystalline polyolefin, or combinations thereof. In one embodiment, the strands contain a thermoplastic elastomer and the meltblown web contains a semi-crystalline polyolefin. For example, the thermoplastic elastomer(s) may constitute about 70 wt.% or more, in some embodiments about 80 wt. % or more, and in some embodiments, about 90 wt. % or more of the strands, while the semi-crystalline polyolefin(s) may constitute about 70 wt.% or more, in some embodiments about 80 wt. % or more, and in some embodiments, about 90 wt. % or more of the meltblown web. (Ng ii 45; see also Ans. 6-7.) 6 Appeal2014-004909 Application 12/872, 190 9. The Specification teaches that [a] s used herein, the term "resilient co form" generally refers to a resilient coform nonwoven layer including a matrix of meltblown fibers and an absorbent material, wherein the meltblown fibers constitute from 30 wt% to about 99 wt% of the web and the absorbent material constitutes from about 1 wt% to about 70 wt% of the web, and further wherein the meltblown fibers being formed from a thermoplastic composition that contains at least one propylene/a-olefin copolymer having a propylene content of from about 60 mole% to about 99.5 mole% and an a olefin content of from about 0.5 mole% to about 40 mole%, wherein the copolymer further has a density of from about 0.86 to about 0.90 grams per cubic centimeter and the composition has a melt flow rate of from about 120 to about 6000 grams per 10 minutes, determined at 230Â°C in accordance with ASTM Test Method 01238-E, although practical considerations can reduce the high end melt flow rate range. (Spec. 9: 17-29; see also Ans. 5.) Principles of Law "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR!nt'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). "If a person of ordinary skill can implement a predictable variation, Â§ 103 likely bars its patentability." Id. at 417. Analysis Claims 1-9, 11-19, and 21 We adopt the Examiner's findings of fact and reasoning regarding the scope and content of the prior art (Ans. 2-13; FF 1-9) and agree that the claims are obvious over Zenker, Ko, and Ng. We address Appellants' arguments below. 7 Appeal2014-004909 Application 12/872, 190 Appellants contend that Ng teaches the use of a nonwoven laminate. The propylene/a- olefin copolymer in Ng referenced by the Examiner are part of a semi-crystalline polymer in the elastic strand layer that is laminated to a nonwoven web facing to form a nonwoven composite (See [0037], [0023] of Ng). This is a completely different structure than a matrix of fibers and absorbent material in the pending claims. Therefore, one skilled in the art would [not] expect to combine the teachings of the non woven laminate structure disclosed in Ng to provide a resilient co form for use in an absorbent composite that achieve the desired results as currently claimed. (Br. 5.) We are not persuaded. As the Examiner explains, "the [E]xaminer relies on Ng for his teaching of a specific propylene/a-olefin range" (Ans. 11-12; FF 7-8). The Examiner further responds that [i]n this case, there is instant motivation for combining the propylene/a-olefin meltblown fiber of Ko with the propylene/a- olefin ranges of Ng. Ng copolymerizes polypropylene with a- olefin for producing a copolymer that exhibits both plastic and elastomeric characteristics -- i.e. the qualities of a plastomer [0024.] Since it is well known in the art of diapers to produce meltblown fibers that are both processable (plastic) and stretchable (elastomeric; see for example, 6362389,) it would be obvious to one of ordinary skill in the art to modify the propylene/a-olefin meltblown fiber of Ko with the propylene/a- olefin ranges ofNg. (Ans. 12-13; FF 6.) "Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references[]. [The reference] must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). 8 Appeal2014-004909 Application 12/872, 190 The Examiner further noted that Ng also uses his semi-crystalline propylene/a-olefin meltblown to form an elastic web. Paragraph [0045,] which discloses elastic strands laminated to a meltblown web, or a matrix of fibers (see also US 5385775,) explicitly states that semi-crystalline polyolefins such as they propylene/a-olefin meltblown "may constitute about 70 wt. % or more, in some embodiments about 80 wt. % or more, and in some embodiments, about 90 wt.% or more of the meltblown web." Thus, not only would it be obvious to combine the meltblown of Ko with the ranges of Ng, but [Appellants'] basis for unobviousness is directly refuted in Ng. (Ans. 13; FF 8.) Accordingly, we agree with the Examiner that the combined teachings of Zenker regarding an absorbent composite (FF 1-3), of Ko regarding the ranges of percent weight of absorbent and fibers (FF 4- 5), and of Ng regarding the ranges of propylene and a-olefin content (FF 6- 8), would yield predictable results of an absorbent composite having a resilient coform material as claimed. Appellants do not contend that the Examiner erred in combining the teachings of Zenker, Ko, and Ng, other than the reasons discussed above. Conclusion of Law The evidence of record supports the Examiner's conclusion that Zenker, Ko, and Ng render claims 1, 17, 18, 19, and 21 prima facie obvious. Appellants do not argue separately the claims for this obviousness rejection. Therefore, claims 2-9 and 11-16 fall with claim 1. Claim 10 Appellants contend that "Makoui fails to correct this deficiency" with respect to Zenker, Ko, and Ng in regard to claim 1 (Br. 5). Having affirmed the obviousness rejection of claim 1, over Zenker, Ko, and Ng for the reasons given above, we therefore affirm the rejection of claim 10. 9 Appeal2014-004909 Application 12/872, 190 Claim 22 Appellants contend that "[fJor at least the reasons stated above with respect to the independent claims, Appellants submit that Zenker in view of Ko and further in view of Ng and Keuhn does not render obvious claim 22" (id.). Having affirmed the obviousness rejection of claim 21 over Zenker, Ko, and Ng for the reasons given above, we therefore affirm the rejection of claim 22. SUMMARY In summary, we affirm the rejection of claims 1, 17, 18, 19, and 21 under 35 U.S.C. Â§ 103(a) as obvious over Zenker, Ko, and Ng. Claims 2-9 and 11-16 fall with claim 1. We affirm the rejection of claim 10 under 35 U.S.C. Â§ 103(a) as obvious over Zenker, Ko, Ng, and Makoui. We affirm the rejection of claim 22 under 35 U.S.C. Â§ 103(a) as obvious over Zenker, Ko, Ng, and Keuhn. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ l.136(a). AFFIRMED 10