Ex Parte Smith et al

Patent Trial and Appeal Board

Mar 23, 2018

11748941 (P.T.A.B. Mar. 23, 2018)

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