Ex Parte Vega et al

Patent Trial and Appeal BoardApr 14, 2016

12618141 (P.T.A.B. Apr. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/618,141 11113/2009 27752 7590 04/18/2016 THE PROCTER & GAMBLE COMPANY Global Patent Services - Legal IP Central Building, CS One Procter and Gamble Plaza CINCINNATI, OH 45202 FIRST NAMED INVENTOR Victor Nicholas Vega 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. CM3341M 6013 EXAMINER KRUER,KEVINR ART UNIT PAPER NUMBER 3649 NOTIFICATION DATE DELIVERY MODE 04/18/2016 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 VICTOR NICHOLAS VEGA, WENDY QIN, RANDALL GLENN MARSH, and THOMAS JAMES KLOFTA Appeal2014-008272 Application 12/618,141 Technology Center 3600 Before MARK NAGUMO, CHRISTOPHER M. KAISER, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. Appeal2014-008272 Application 12/618,141 DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. Â§ 134 from a Final Rejection of claims 1, 2, 4--8, 10, 14, and 24. 2 We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. OPINION A. Introduction The claims relate to "disposable absorbent products, such as diapers and sanitary napkins." (Spec. 1, 11. 16-17.)3 A stated objective of the '141 Specification is "to develop disposable absorbent articles having a substrate or a sheet comprising a compound or a composition that exhibits adherence for bodily exudates such as feces or menses, so that less bodily exudates (feces or menses) remain on the skin of the user." (Id. at 1, 11. 29-32.) Claim 1, reproduced below, is illustrative of the claimed subject matter: An absorbent article comprising a topsheet, backsheet, and an absorbent core encased between the topsheet and the backsheet, the topsheet comprising a substrate having a body facing surface and a garment facing surface, wherein the body facing surface comprises a coating, the coating comprising a compound imparting adherence for exudates to said substrate, the compound comprising: a compound being a solid non-ionic compound of formula: 1 The Real Party in Interest is identified as The Procter & Gamble Company of Cincinnati, Ohio. (Appeal Brief filed 08 April 2014 ("Br."), 1.) 2 Rejection mailed 19 November, 2013 (hereinafter "FR"). 3 Application 12/618,141, Substrate with Adherence for Feces and Menses, filed 13 November 2009. We refer to the"' 141 Specification," which we cite as "Spec." 2 Appeal2014-008272 Application 12/618,141 Ri-CO-[A]-R2 wherein Riis a C12-C22 hydrocarbyl or C12- C22 substituted hydrocarbyl group; wherein R2 is selected from: (a) -O-CO-R3 wherein R3 is a C12-C22 hydrocarbyl or C12-C22 substituted hydrocarbyl group; or (b) -CH-[B]-0-CO-Ri I CH2-[B ']-0-CO-Rs wherein Ri is a C12-C22 hydrocarbyl or C12- C22 substituted hydrocarbyl group; wherein Rs is a C12-C22 hydrocarbyl or C12- C22 substituted hydrocarbyl group; and wherein A, B and B' are independently selected from: (b) a polymer or copolymer of ethylene oxide, propylene oxide, butylene oxide, hydroxypropylene oxide wherein said polymer or said copolymer comprises from 7 0 to 190 monomers, or [-]O-CH2-CHOH-CH2- wherein the compound is substantially not transferable to a user of the absorbent article. (Claims App., Br. 6-7 (emphasis added).) The Examiner maintains4 the following ground of rejection: Claims 1, 2, 4--8, 10, 14, and 24 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Roes and Heyden. 6 (FR. 2.) Appellants seek our review of the rejections of independent claim 1. 7 4 Examiner's Answer filed 27 May 2014 ("Ans."). A section 112 rejection of claim 24 has been withdrawn. (Id. at 3--4.) The section 112 rejection of claim 24 is therefore not subject to review. See 35 U.S.C. Â§ 6. s Donald Carroll Roe et al, Absorbent Article Having a Lotioned Topsheet, U.S. Patent 5,968,025 (issued Oct. 19, 1999) ("Roe"). 6 Rudi Heyden et al, Use of a Hydrophilic Plasticizer for Plastic Dispersions and Pastes, U.S. Patent 3,957 ,712 (issued May 18, 1976) ("Heyden"). 7 Claims 2, 4--8, 10, 14, and 24 stand and fall with claim 1. (Br. 2.) 3 Appeal2014-008272 Application 12/618,141 B. Discussion Findings of fact throughout this Opinion are supported by a preponderance of the evidence of record. Claim 1 The issue dispositive of the appeal is whether the Examiner has shown that "an absorbent article" having a "compound [that] is substantially not transferable to a user of the absorbent article" is present in or would have been obvious in view of the applied prior art. In support of the obviousness rejections, the Examiner finds that Roe describes an absorbent article (such as a diaper) having a topsheet with a hydrophilic component miscible with an immobilizing agent so that the hydrophilic component "is substantially non-migratory" from the absorbent article. (See Ans. 4; Roe, 13, 11. 40-41.) Additionally, based on the teachings in Heyden about hydrophilic coatings on non-woven fabrics to "retain [] softness" of the fabrics, the Examiner concludes that a skilled artisan would have found claim 1 obvious based on the collective teachings of Roe and Heyden. (Id. at 4--5.) Appellants argue that the Examiner erred in establishing a prima facie case of obviousness. Appellants argue that claim 1 "requires that the absorbent article comprise, in part, a coating, the coating comprising a compound imparting adherence for exudates to said substrate, wherein the compound is substantially not transferable to a user of the absorbent article," which is not taught or suggested by the cited references. (Br. 3 (emphasis in original).) Appellants point to the discussion in Roe regarding a hydrophilic component that is non-migratory and assert that "[t]here is no teaching in Roe that 'non[-]migratory' means not transferable to a user." (Id.) 4 Appeal2014-008272 Application 12/618,141 Appellants point to a passage in Roe that discloses an article having "lotion compositions" that may "migrate into the interior of the diaper topsheet" and assert, without citing evidence in the record, that Roe defines the term "migrate" as "flow into the interior of the diaper topsheet, not onto the skin." (Id. at 4; Roe, 10, 11. 8-10.) Appellants argue that Roe "actually teaches away from a compound that is not transferable to a user" because Roe describes a disposable product that includes a layer of lotion8 which may be applied to the skin of a user of the product. (Id. at 3--4.) One cannot show nonobviousness by attacking references individually when the rejection is based on a combination of references. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Rather, rejections based on obviousness must be supported by "some articulated reasoning with some rational underpinning" to combine known elements in the manner required by the claim. KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). In this case, Appellants do not dispute the Examiner's finding that Roe describes a hydrophilic component that is miscible with an immobilizing agent and becomes non-migratory as a result. (See Ans. 4--5; see, e.g., Br. 2--4 (citing the Examiner's findings with regard to the hydrophilic component without addressing the findings).) Appellants do not dispute the Examiner's findings that Roe discloses using the "immobilizing agent" to "counteract[] [a] tendency ... to migrate." (See Ans. 4--5; Roe, 8 Roe provides that the "lotion composition" of the absorbent article may include "an emollient[]," "an immobilizing agent[] for the emollient," "optionally a hydrophilic surfactant[]," and other "optional components." (Roe, 10, 11. 28-32.) According to Roe, "hydrophilic surfactants will be miscible with the emollient and the immobilizing agent" and is "non-migratory after the lotion composition is applied to the diaper topsheets." (Id. at 17, 11. 30-32, 40--42.) 5 Appeal2014-008272 Application 12/618,141 13, 11. 30-32, 41--45.) Appellants do not dispute the Examiner's finding that the Heyden reference discloses a "hydrophilic component" that may be "applied to non-woven fabric substrates" without being transferred from the fabric substrate. (See Ans. at 5 (citing Heyden at 3, 11. 33-34, 11. 8-13; see, e.g., Br. 2--4 (discussing the Roe reference alone).) Appellants also do not provide any argument against the Examiner's "articulated reasoning with some rational underpinning" to combine the teachings of Roe and Heyden, namely, a skilled artisan would have had the knowledge and skill to apply these references "to utilize the hydrophilic component of Heyden as the hydrophilic component of Roe" because both references are directed to improving certain aspects of a disposable article. (FR. 3--4; see also Ans. 3 (providing an obviousness analysis based on both references).) Because Appellants' argument is based on Roe alone and does not address the rationale provided by the Examiner, Appellants have not pointed us to any harmful error in the Examiner's rationale supporting the obviousness findings based on the combined teachings of the references. See KSR, 550 U.S. at 419. With regard to whether Roe teaches away from a compound that "is substantially not transferable to a user of the absorbent article" as claimed, Appellants have not shown, based on evidence of record, that Roe disparages the non-transferability to the user. (See Br. 4; see also DyStar Textilfarben GmbH v. CH Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006) ("We will not read into a reference a teaching away from a process where no such language exists."); In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (even if it discloses a different solution to a similar problem, a reference does not teach away unless it also criticizes, discredits, or 6 Appeal2014-008272 Application 12/618,141 otherwise discourages the claimed solution)). As discussed earlier, Appellants do not address the Examiner's findings with regard to the immobilizing agent, and we are therefore not persuaded that the Examiner erred in this aspect of the obviousness analysis. C. Order For the above reasons, the Examiner's rejections of claims 1, 2, 4--8, 10, 14, and 24 are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv) (2009). AFFIRMED 7