Ex Parte Smith et alDownload PDFPatent Trial and Appeal BoardMar 23, 201811748941 (P.T.A.B. Mar. 23, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111748,941 05/15/2007 28863 7590 03/27/2018 SHUMAKER & SIEFFERT, P.A. 1625 RADIO DRIVE SUITE 100 WOODBURY, MN 55125 FIRST NAMED INVENTOR Nicole Smith 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. 1126-008US03 7332 EXAMINER PIZIALI, ANDREW T ART UNIT PAPER NUMBER 1789 NOTIFICATION DATE DELIVERY MODE 03/27/2018 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): pairdocketing@ssiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NICOLE SMITH, YOUNG HWA KIM, HONG JI, and YOUNG LIN KIM 1 Appeal2017-005606 Application 11/748,941 Technology Center 1700 Before BRADLEY R. GARRIS, TERRY J. OWENS, and WESLEY B. DERRICK, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 from the Examiner's decision rejecting claims 31--48, 50, 52-54, 56, and 59---63. We have jurisdiction under 35 U.S.C. § 6. We AFFIRM. Appellants claim a scrub pad comprising an intermediate layer (702) between first and second fabric substrates (106, 706) with a plurality of cured polymer plates (108) separated by gaps on the top surface of, and partially penetrating into, the first fabric substrate, wherein the plates are arranged in a uniform and repeating pattern such that they are uniformly 1 Higher Dimension Materials, Inc. is identified as the real party in interest (App. Br. 3). Appeal2017-005606 Application 11/748,941 distributed and form gaps defining straight-line passages, and wherein the gaps have a width greater than one-third of the largest dimension of the plates (independent claim 31, Fig. 7; see also independent claims 34 and 43). 2 A copy of representative claim 31, taken from the Claims Appendix of the Appeal Brief, appears below. 3 1. A scrub pad comprising: a compressible, liquid-absorbent intermediate layer including a top surface and a bottom surface; a first liquid-permeable woven fabric substrate including a top surface and a bottom surface and a first hardness, wherein the bottom surface of the first fabric substrate is positioned adjacent to the top surface of the intermediate layer, wherein the top surface and bottom surface of the fabric substrate define a thickness of the fabric substrate; a first plurality of cured polymer plates separated by gaps on the top surface of the first fabric substrate and partially penetrating into the first fabric substrate to provide a mechanical bond to the first fabric substrate, wherein the cured polymer plates penetrate into the fabric substrate to a depth less than the thickness of the fabric substrate; and a second liquid-permeable fabric substrate including a top surface and a bottom surface, wherein the top surface of the second fabric substrate is positioned adjacent to the bottom surface of the intermediate layer, wherein the top surface of the first fabric substrate forms a first outer surface of the scrub pad and the bottom surface of the second fabric substrate forms a second outer surface of the scrub pad, wherein the first plurality of cured polymer plates are arranged in a uniform and repeating pattern on the top surface 2 According to Appellants' Specification, the claimed plates "are designed to provide abrasive cleansing action" (Spec. i-f 27). 2 Appeal2017-005606 Application 11/748,941 of the first substrate such that the first plurality of cured polymer plates are uniformly distributed on the top surface of the first substrate, and wherein the uniform pattern is such that the first plurality of cured polymer plates form gaps between respective cured polymer plates defining straight line passages extending along two non-parallel axes across the top surface of the first substrate, wherein the plates are arranged on the top surface of the first substrate such that each straight line passage of the straight line passages between respective cured polymer plates extends across an entire length or width of the top surface, and wherein the gaps defining straight line passages have a width of greater than one-third of a largest dimension of the plates. Appellants present arguments regarding independent claim 31 (App. Br. 6-13) and refer to these arguments in contesting the rejection of remaining independent claims 34 and 43 (id. at 13-15). Appellants present a separate argument for dependent claim 63 (id. at 15-16) but not for any of the other dependent claims on appeal (id. at 13-17). As a consequence, these other dependent claims will stand or fall with their parent independent claims, of which claim 31 is representative. Under 35 U.S.C. § 103(a), the Examiner rejects all appealed claims as unpatentable over Martin (US 5,671,498, issued Sept. 30, 1997) in view of Lee (US 6,192,543 Bl, issued Feb. 27, 2001) and Fassina (US 4,173,199, issued Nov. 6, 1979) and further in view of (if necessary) Chou (US 6,312,484 Bl, issued Nov. 6, 2001), Wong (US 5,213,588, issued May 25, 1993), and/or Pope (US 4,319,944, issued Mar. 16, 1982) (Final Action 2-9) and alternatively rejects claims 46, 50, and 52 over these references in combination with Fryan (US 5,814,388, Sept. 29, 1998) (id. at 9-10). 3 Appeal2017-005606 Application 11/748,941 We will sustain the rejection of all appealed claims over Martin in view of Lee, Fassina, Chou, Wong, and Pope based on the Examiner's findings and conclusions that are discussed below. 3 The Examiner finds that Martin discloses a scrub pad comprising an intermediate layer between first and second fabric substrates albeit without abrasive plates but that Lee discloses a scrub pad having abrasive polymer plates defining straight-line passages extending across an entire length or width of the top pad surface as claimed (Final Action 3--4 (citing Martin col. 5, 1. 10-col. 6, 1. 47 and Lee, Fig. 8)). In light of these findings, the Examiner concludes that it would have been obvious to provide Martin's scrub pad with Lee's abrasive plates "motivated by a desire to improve the cleaning performance" (id. at 3), and Appellants do not argue otherwise (see generally App. Br.). The Examiner also finds that Chou discloses a scrub pad having abrasive composites arranged in a uniform and repeating pattern as required by claim 31 and concludes that, in view of this disclosure, it would have been obvious to arrange in such a pattern the abrasive plates of the above Martin and Lee combination (Final Action 5). Appellants acknowledge that Chou's abrasive composites may be separated from one another but argue that they are part of a continuous abrasive coating and accordingly do not form the claimed gaps (App. Br. 9- 11 ). 3 The Examiner makes a number of alternative findings and conclusions which are not discussed, and are not relied upon, in this decision to sustain the above rejection. 4 Appeal2017-005606 Application 11/748,941 The deficiency of Appellants' argument is that it attacks Chou individually. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) ("Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references."). As explained by the Examiner in responding to this argument, "Appellant[s'] argument is not persuasive because Lee is relied upon to teach said gap limitation" (Ans. 11 ). Concerning the claim 3 1 requirement of a gap width greater than one- third the largest plate-dimension, the Examiner finds that "Wong discloses that the polymer plate spacing affects stiffness and absorbency (column 13, lines 39-64)" (Final Action 6). In view of this finding, the Examiner concludes that it would have been obvious to provide the modified scrub pad discussed previously with a gap width greater than one-third the largest plate-dimension "because it is understood by one of ordinary skill in the art that the spacing affects properties such as stiffness and absorbency and because it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art" (id. at 6-7). The Appeal Brief includes arguments regarding the gap width limitation of claim 31 but none that address the above obviousness conclusion based on optimization (App. Br. 11-12). However, in their Reply Brief, Appellants challenge this obviousness conclusion with the following contention: [E]ven assuming, arguendo, that the Wong describes that polymer plate patterns affect "stiffening" (flexibility) and "absorbency" (permeability) (column 13, lines 39-64), Wong fails entirely to describe width of the gaps defining straight line passages versus the largest dimension of the plates as a property of the pattern, much less as a result effective variable with regard to "stiffening" (flexibility) and "absorbency" 5 Appeal2017-005606 Application 11/748,941 (permeability). Thus, there would have been no apparent reason to one skilled in the art to arrange the particles 34 of the mitt 10 of Lee such that the gaps defining straight line passages have a width of greater than one-third of a largest dimension of the plates. (Reply Br. 9). Appellants' contention lacks persuasive merit. As correctly determined by the Examiner and not disputed by Appellants, "the current [S]pecification discloses that the claimed gap size was selected based on the desired product flexibility and permeability [0028] but Wong discloses that it was already known in the scrub pad art that polymer plate patterns affect 'stiffening' (flexibility) and 'absorbency' (permeability) (column 13, lines 39-64)" (Ans. 13). This determination reveals that both Appellants and Wong are optimizing to achieve the same acceptable scrub pad characteristics of stiffening/flexibility and absorbency/permeability. This circumstance supports the proposition that the Examiner's proposed optimization to achieve acceptable characteristics based on Wong necessarily would have resulted in the claimed gap width used by Appellants to achieve the same characteristics. Appellants do not embellish their above quoted contention with any explanation why the proposed optimization would not have resulted in a gap width greater than one-third the largest plate-dimension as claimed. As for the claim 31 requirement that the polymer plates partially penetrate the fabric substrate, the Examiner finds that the polymer plates of Lee are attached by glue or otherwise attached and that each of Fassina and Pope discloses partially embedding curable polymer into a fabric substrate to obtain a permanent mechanical bond between the substrate and cured polymer (Final Action 6). The Examiner concludes that it would have been 6 Appeal2017-005606 Application 11/748,941 obvious to partially embed Lee's pre-cured polymer plates into the fabric substrate of Martin's scrub pad in order to obtain a permanent mechanical bond between the substrate and the cured polymer plate (id.). Appellants argue that the Examiner's conclusion is erroneous because Fassina and Pope partially embed curable polymer into a fabric substrate "for the purpose of reinforcing the fabric substrate itself and not to obtain a permanent mechanical bond between the fabric substrate and the cured polymer" (App. Br. 13). While Fassina and Pope may teach partially embedding for the purpose of reinforcement, Appellants do not contest the Examiner's finding that it was known in the prior art to partially embed polymer into a fabric to obtain a permanent mechanical bond between the fabric substrate and the cured polymer (Compare App. Br. 13, with Final Action 6 (citing, e.g., Pope, col. 1, 11. 7-17, wherein Pope teaches partially embedding "to obtain a permanent mechanical bond" (Pope, col. 1, 11. 15-16)) ). This undisputed finding supports the Examiner's conclusion that an artisan would have partially embedded Lee's curable polymer plates into Martin's fabric substrate "motivated by a desire to obtain a permanent mechanical bond between the fabric substrate and the cured polymer" (Final Action 6). In rejecting dependent claim 63, the Examiner finds that Chou discloses a cross-shape (Final Action 9 (citing Chou, col 15, 11. 27-33)) and concludes that it would have been obvious to construct Lee's plates with a cross-shape "because it is within the general skill of a worker in the art to select a shape on the basis of its suitability, appearance, and/or desired characteristics" (id.). Appellants argue that the Examiner's obviousness conclusion is in error because "the cited portion of Chou does not describe the shape of each 7 Appeal2017-005606 Application 11/748,941 plate of a plurality of cured polymer plates separated by gaps on the top surface of a first fabric substrate[;] [ r ]ather, Chou is merely describing the shape of the abrasive composites on the surface of a continuous sheet-like abrasive coating over a nonwoven web" (App. Br. 15). As above, Appellants' argument is unconvincing because it ineffectively attacks Chou individually. See In re Merck & Co., Inc., 800 F .2d at 1097. The Examiner responds by correctly explaining that Appellants' argument is not persuasive "because Lee, not Chou, is cited to teach the limitation wherein the plates are separated by gaps on the top surface of the fabric substrate" (Ans. 14). In light of the foregoing, we sustain the rejection of all appealed claims over Martin, Lee, Fassina, Chou, Wong, and Pope based on the above discussed findings and conclusions of the Examiner. DECISION The decision of the Examiner 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)(l )(iv). AFFIRMED 8 Copy with citationCopy as parenthetical citation