Ex Parte Westwood et al

Patent Trial and Appeal Board

Nov 21, 2018

12726642 (P.T.A.B. Nov. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/726,642 03/18/2010
23455 7590 11/26/2018
EXXONMOBIL CHEMICAL COMPANY
5200 BA YW A Y DRIVE
P.O. BOX 2149
BAYTOWN, TX 77522-2149
FIRST NAMED INVENTOR
Alistair Duncan Westwood
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.
2010EM091 1676
EXAMINER
JOHNSON, NANCY ROSENBERG
ART UNIT PAPER NUMBER
1783
NOTIFICATION DATE DELIVERY MODE
11/26/2018 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):
chem.law. prosecution@exxonmobil.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALISTAIR DUNCAN WESTWOOD and
GALEN CHARLES RICHESON
Appeal 2017-011485
Application 12/726,642
Technology Center 1700
Before MARK NAGUMO, JEFFREY B. ROBERTSON, and
JANEE. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 request our review under 35 U.S.C. § 134(a) of the
Examiner's decision to finally reject claims 11 and 17-21. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
STATEMENT OF THE CASE
Appellants claim a multilayer nonwoven composite made by a multi-
beam meltblowing apparatus (independent claim 11) and a multilayer
nonwoven composite (independent claim 17). App. Br. 9-10. Claim 11
illustrates the subject matter on appeal and is reproduced below with
1 Appellants identify ExxonMobil Chemical Company as the real party in
interest. Appeal Brief filed April 18, 2017 ("App. Br."), 3.
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Application 12/726,642
contested language italicized:
11. A multilayer nonwoven composite made by a multi-beam
meltblowing apparatus comprising:
a first extruder;
a first die connected to the first extruder for producing a
first nonwoven layer;
a second extruder;
a second die connected to the second extruder for
producing a second nonwoven layer;
an intermediate extruder;
an intermediate die connected to the intermediate
extruder for producing an intermediate nonwoven layer and
positioned such that the intermediate nonwoven layer is
between the first and second nonwoven layers; wherein the first
nonwoven layer, the second nonwoven layer, and the
intermediate non woven layer consist of fibers;
a first collecting surface positioned to collect the first
nonwoven layer; and
a second collecting surface positioned to collect the
second nonwoven layer,
wherein the first and second collecting surfaces create a
nip through which the first nonwoven layer, the second
nonwoven layer, and the intermediate nonwoven layer are
passed to form a multilayer nonwoven composite,
wherein at least one of the first and second collecting
surfaces is ridged such that at least a portion of the fibers
formed on the ridged collecting surface do not conform to the
ridged collecting surface such that the nonwoven layer formed
on the ridged collecting surface is three-dimensional and has an
allowable elongation of at least about 20% without mechanical
activation of the nonwoven layer formed on the ridged
collecting surface,
wherein the intermediate nonwoven layer comprises a
propylene-a-olefin copolymer comprising (i) at least 50 wt% of
propylene-derived units, based on the weight of the propylene-
a-olefin copolymer and (ii) from about 5 to about 35 wt% of at
least one of ethylene or C4-C10 a-olefin derived units, based on
the weight of the propylene-a-olefin copolymer, wherein the
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Application 12/726,642
propylene-a-olefin copolymer has a heat of fusion of
about 75 Jig or less and a melting point of about 120 °Corless,
and
wherein the first nonwoven layer, second nonwoven
layer, and intermediate nonwoven layers are formed in situ and
wherein the fibers of the first and intermediate layers are bound
to one another through entanglement and the fibers of the
intermediate and second layers are bound to one another
through entanglement to form the composite.
App. Br. 9 (Claims Appendix) (emphasis added).
The Examiner sets forth the following rejections in the Final Office
Action entered October 17, 2016 ("Final Act."), and maintains the rejections
in the Examiner's Answer entered July 12, 2017 ("Ans."):
I. Claims 11, 17-19, and 21 under 35 U.S.C. § 103(a) as
unpatentable over Ashraf (US 2006/0083 893 Al, published April 20, 2006)
in view of McCormack et al. (US 2008/0076315 Al, published March 27,
2008) and Melbye et al. (US 5,681,302, issued October 28, 1997); and
II. Claim 20 under 35 U.S.C. § 103(a) as unpatentable over Ashraf
in view of McCormack, Melbye, and Yang et al. (US 2006/0173123 Al,
published August 3, 2006).
DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellants' contentions, we affirm the Examiner's rejections of
claims 11 and 17-21 under 35 U.S.C. § 103(a) for the reasons set forth in the
Final Office Action, the Answer, and below.
We review appealed rejections for reversible error based on the
arguments and evidence Appellants provide for each ground of rejection
Appellants contest. 37 C.F.R. § 4I.37(c)(l)(iv); Ex parte Frye, 94 USPQ2d
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Application 12/726,642
1072, 107 5 (BP AI 2010) (precedential), cited with approval in In re Jung,
637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the examiner
had failed to make a prima facie case, "it has long been the Board's practice
to require an applicant to identify the alleged error in the examiner's
rejections").
Rejection I
Appellants argue claims 11, 1 7-19, and 21 as a group on the basis of
claim 11, to which we accordingly limit our discussion. App. Br. 6-7;
37 C.F.R. § 4I.37(c)(l)(iv).
Appellants do not dispute the Examiner's finding that a combination
of the relied-upon disclosures of Ashraf and McCormack would have
suggested a multilayer composite in which an intermediate elastic nonwoven
layer consisting of fibers is between first and second nonwoven layers
consisting of fibers, and in which the intermediate layer comprises a
propylene-a-olefin copolymer having a composition and properties as
recited in claim 11. Compare Final Act. 3--4, with App. Br. 6-7. Nor do
Appellants dispute the Examiner's finding that the relied-upon disclosures of
Ashraf and McCormack would have suggested that at least one of the first
and second nonwoven layers is three-dimensional and has an allowable
elongation of at least about 20% without mechanical activation of the layer.
Compare Final Act. 3--4, with App. Br. 6-7.
The Examiner finds that Ashraf (and McCormack) fail "to disclose the
layers being bonded together through fiber entanglement" and the Examiner
relies on Melbye for suggesting this feature. Final Act. 4--5. Melbye
discloses multilayer composite 30 produced by providing first and second
sheets 12, 32 of nonwoven fibrous flexible material, shaping first and second
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sheets 12, 32 to form arcuate convex surfaces 13, 33 spaced from anchor
portions 14, 34 by feeding first sheet 12 through first and second generally
cylindrical corrugating members 20, 21 each having a multiplicity of spaced
ridges 19 defining their periphery, and feeding second sheet 32 through third
and fourth generally cylindrical corrugating members 36, 37 each having a
multiplicity of spaced ridges 38 defining their periphery. Col. 7, 11. 15-35;
col. 8, 11. 59---63; col. 9, 11. 25-32; Figs. 4 and 5. Melby discloses positioning
third corrugating member 3 6 in spaced relationship from first corrugating
member 20 ( creating a nip), extruding generally parallel elongate molten
elastic strands 16a from extruder die 22 onto anchor portions 14, 34 of first
and second sheets 12, 32, and passing first and second sheets 12, 32 having
molten strands 16a on anchor portions 14, 34 through the space between the
peripheries of first and third corrugating members 20, 36 (passing first
nonwoven layer, second nonwoven layer, and intermediate layer through the
nip) to press the molten elastic strands against the anchor portions of the
sheets at "bonding locations." Col. 7, 11. 44---col 8, 1. 6; col. 8, 11. 31-39; col.
9, 11. 59---65; Figs. 4 and 5. Melbye discloses that this process causes the
molten elastic strands to form around and be indented by the surfaces of the
anchor portions of the first and second sheets at the bonding locations,
resulting in "very firm attachment" between the sheets and the elastic
strands. Col. 2, 11. 26-32; col. 8, 11. 31-39.
Thus, like the process recited in claim 11, Melbye discloses forming
ridged first and second nonwoven sheets or layers, producing an
intermediate elastic layer positioned between the first and second nonwoven
layers with a die (intermediate die) connected to an extruder, and passing
this three-layer material through a nip to form a multilayer composite. In
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view of these disclosures in Melbye, the Examiner finds that Melbye
discloses the same method as recited in claim 11 for joining layers of a
composite material. Ans. 4. The Examiner concludes that it would have
been obvious to one of ordinary skill in the art at the time of Appellants'
invention to bind "the layers in Ashraf in view of McCormack" by
"extruding the elastic layer and binding the layers through indenting the
elastic member at the bonding points as taught by Melbye as a suitable way
layers may be formed together so that at least one layer has a corrugated
structure." Final Act. 5.
The Examiner determines that although "Ashraf in view of
McCormack and Melbye do[] not specifically disclose the layers being
bonded together through fiber entanglement," one of ordinary skill in the art
would have been expected this to occur when bonding the nonwoven layers
of Ashraf s composite modified by McCormack using the process disclosed
in Melbye, because the combined disclosures the Ashraf, McCormack, and
Melbye disclose "the same structure made with the same method as
claimed." Ans. 4 (citing In re Best, 562 F.2d 1252, 1255 (CCPA 1977).
The Examiner reasons that "[ s ]ince the adjacent layer and the elastic layer
are fibrous (see discussion above), fibers from the adjacent layer would be
expected to enter the elastic layer to create entanglement between the two
fibrous layers when the adjacent layer enters the molten elastic layer." Final
Act. 5.
Appellants argue that fibers of first and intermediate layers, and fibers
of intermediate and second layers, bound to one another through
entanglement, is not inherent in the disclosure of Melbye, because Melbye
discloses hydro entanglement of fibers within a single layer, rather than fiber
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entanglement between two layers. App. Br. 6.
Claim 11 is a product-by-process claim, and "even though product-by-
process claims are limited by and defined by the process, determination of
patentability is based on the product itself." In re Thorpe, 777 F.2d 695, 697
(Fed. Cir. 1985). "Where a product-by-process claim is rejected over a prior
art product that appears to be identical, although produced by a different
process, the burden is upon the applicants to come forward with evidence
establishing an unobvious difference between the claimed product and the
prior art product." In re Marosi, 710 F.2d 799, 803 (Fed. Cir. 1983) (citing
In re Best, 562 F.2d at 1255).
As discussed above, it is undisputed on this appeal record that a
combination of the relied-upon disclosures of Ashraf and McCormack would
have suggested a multilayer composite that includes an intermediate fibrous
elastic nonwoven layer between first and second fibrous nonwoven layers.
As also discussed above, although Melbye discloses forming first and
second sheets of flexible material by hydro entanglement of nonwoven
fibers, and does not explicitly disclose entanglement of fibers between the
different layers of Melbye' s composite, Melbye nonetheless discloses a
process for joining nonwoven layers of a multilayer composite material that
appears to be the same or substantially the same as the process recited in
claim 11.
Thus, because the multilayer nonwoven composite suggested by the
combined disclosures of Asraf, McCormack, and Melbye appears to be the
same or substantially the same as the multilayer nonwoven composite
recited in claim 11, and appears to be made by the same or substantially the
same process, the Examiner has a reasonable basis for finding that the fibers
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from the first and second nonwoven layers would become entangled-to at
least some extent-with fibers from the intermediate molten elastic material
when the first and second nonwoven layers are pressed into and indent the
molten elastic material, as disclosed in Melbye. Claim 11 does not require
any particular degree of fiber entanglement, and accordingly, any degree of
fiber entanglement between layers would meet the claim requirement.
Therefore, the burden shifts to Appellants to show that the structure of the
multilayer nonwoven composite suggested by the combined disclosures of
Asraf, McCormack, and Melbye is materially different from the structure of
the multilayer non woven composite recited in claim 11. In re Best, 562 F .2d
1252, 1255 (CCPA 1977) ("Where ... the claimed and prior art products are
identical or substantially identical, or are produced by identical or
substantially identical processes, the PTO can require an applicant to prove
that the prior art products do not necessarily or inherently possess the
characteristics of his claimed product."); In re Crish, 393 F.3d 1253, 1259
(Fed. Cir. 2004) ("[W]hen the prior art evidence reasonably allows the PTO
to conclude that a claimed feature is present in the prior art, the evidence
'compels such a conclusion if the applicant produces no evidence or
argument to rebut it."' (quoting In re Spada, 911 F.2d 705, 708 n.3 (Fed.
Cir. 1990)).
Although Appellants argue that fiber entanglement is not inherent
when two nonwoven layers come into contact and bond because, "depending
on a variety of material properties and processing conditions, strands may be
molten and become agglomerated rather than entangled, as discussed in
Melbye," we find no discussion of agglomeration in the portion of Melbye
cited by Appellants. App. Br. 6-7 (citing Melbye col. 8, 11. 31-39).
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Appellants' arguments do not identify particular "material properties
and processing conditions" that would prevent fibers from first and second
nonwoven layers from becoming entangled-to at least some extent-with
fibers from an intermediate molten elastic material when the first and second
nonwoven layers are pressed into and indent the parallel strands of the
molten elastic material, as disclosed in Melbye. App. Br. 6-7. Unlike the
corrugated essentially continuous nonwoven sheets 12, 32, discussed by
Melbye in association with Figures 5 and 6, nonwoven fabrics described by
Ashraf include relatively open structures suitable for absorbent articles.
Ashraf,I 89; McCormack ,r 67. The Examiner's inference that such
nonwoven webs, when pressed against the parallel elastic strands 16 of
Melbye, would result in some degree of entanglement, i.e., "mechanical
linkage" (Spec. ,r 114), is thus not unreasonable. Thus, Appellants'
arguments do not show that the process recited in claim 11 for producing the
claimed multilayer nonwoven composite imparts any limiting structural
characteristic recited in claim 11 that distinguishes it from the multilayer
nonwoven composite suggested by the combined disclosures of Asraf,
McCormack, and Melbye.
Accordingly, Appellants' arguments are unpersuasive of reversible
error in the Examiner's rejection of claim 11, and we therefore sustain the
rejection of claims 11, 17-19, and 21 under 35 U.S.C. § 103(a).
Rejection II
To address this rejection, Appellants rely on the arguments made for
claim 11 ( discussed above), and argue that the additional reference applied
in this rejection (Yang) fails to cure the deficiencies of Ashraf, McCormack,
and Melbye. App. Br. 7. Because we are unpersuaded of reversible error in
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the Examiner's rejection of claim 11 for the reasons discussed above,
Appellants' position as to this rejection is also without merit.
DECISION
We affirm the Examiner's rejections of claims 11 and 17-21 under
35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
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