Ex Parte YAMADA

Patent Trials and Appeals BoardMar 5, 2019

15168624 - (D) (P.T.A.B. Mar. 5, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 15/168,624 05/31/2016 Kikuo YAMADA 22850 7590 03/07/2019 OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P. 1940 DUKE STREET ALEXANDRIA, VA 22314 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. 471441US23CONT 2126 EXAMINER WORRELL, KEVIN ART UNIT PAPER NUMBER 1789 NOTIFICATION DATE DELIVERY MODE 03/07/2019 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): patentdocket@oblon.com OBLONPAT@OBLON.COM iahmadi@oblon.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KIKUO YAMADA Appeal2019-000088 Application 15/168,624 Technology Center 1700 Before JAMES C. HOUSEL, LILAN REN and MERRELL C. CASHION, JR., Administrative Patent Judges. CASHION, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. Â§ 134 from a final rejection of claims 1-8 and 10-22. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. Appeal2019-000088 Application 15/168,624 Claim 1 is illustrative of the subject matter on appeal and is reproduced below (formatting added): 1. A base fabric for a disposable textile product, compnsmg: a laminated sheet comprising a first fibrous sheet, a second fibrous sheet, and a fiber material interposed between the first fibrous sheet and the second fibrous sheet; and an elastic member laminated together with the laminated sheet, wherein the first and second fibrous sheets have air permeability, the fiber material has liquid diffusibility, the laminated sheet forms a composite layer in which a fiber layer having the air permeability and a fiber layer having the liquid diffusibility are laminated, the elastic member comprises a plurality of linear elastic bodies and is laminated such that the elastic member imparts elasticity to the laminated sheet, and the composite layer has an uneven surface formed by a shrinkage stress of the elastic member, the uneven surface forming a plurality of shirring portions in the base fabric, the shirring portions extending in a direction perpendicular to a longitudinal direction of the linear elastic bodies in a non-tensioned state and forming a plurality of shirring rows in a pattern. Appellant1 requests review of the Examiner's decision to reject claims 1-8 and 10-22 under 35 U.S.C. Â§ 103 as unpatentable over Thomas (US 1 The named inventor is the Appellant and is identified as the real party in interest. App. Br. 1. 2 Appeal2019-000088 Application 15/168,624 2014/0171895 Al, published June 19, 2014) and Een (WO 2014/098683 Al, published June 26, 2014). Ans. 4. 2 Appellant presents arguments for independent claim 1 and dependent claim 6. See generally App. Br. Accordingly, we select claim 1 as representative of the subject matter claimed and decide the appeal based principally on the arguments made by Appellant in support of its patentability. To the extent that Appellant presents arguments for claim 6, we address these arguments separately. OPINION After review of the respective positions provided by Appellant in the Appeal and Reply Briefs and the Examiner in the Final Action and the Answer, we affirm the Examiner's prior art rejection of claims 1-8 and 10- 22 for the reasons presented by the Examiner. Claim 1 The Examiner finds that Thomas discloses a base fabric that differs from the claimed invention in that Thomas does not disclose an elastic layer comprising a plurality of linear elastic bodies or that the shirring portions extend in a direction perpendicular to a longitudinal direction of the linear elastic bodies in a non-tensioned state. Ans. 4--5; Thomas ,r,r 27, 45--47, 80, 81, 122, 123, 134, 145, 151 and Figures 5---6. The Examiner turns to Een for 2 We refer to the rejection statement as presented in the Answer because the rejection was modified in the Advisory Action of December 5, 2017 due to the entry of an Amendment filed November 13, 2017. See generally Adv. Act. Thus, the sole rejection presented for review on appeal is the rejection under 35 U.S.C. Â§ 103, as modified by the Advisory Action and restated in the Answer. 3 Appeal2019-000088 Application 15/168,624 the missing features. Ans. 5-6; Een 3, 15 and Figure 7. The Examiner determines that it would have been obvious to one having ordinary skill in the art prior to have modified the elastic layer( s) in the base fabric of Thomas with a pattern of adhesive-coated elastic strands arranged at intervals between the layers of the laminate, as claimed, and with the formation of a corrugation pattern that crosses the direction of the elastic strands at an angle of 90Â°, to obtain an elastic laminate having improved smoothness, softness, flexibility and breathability as taught by Een. Ans. 6; Een2. Appellant argues that Thomas' s diaper (220) does not have "an uneven surface formed by a shrinkage stress of the elastic member" as recited in claim 1. App. Br. 4--5; Reply Br. 2. According to Appellant, the portions of Thomas' s diaper identified by the Examiner as meeting the claimed limitation do not have an uneven surfaces but, instead, are flat as shown in Thomas's Figures 5, 7, and 8. App. Br. 5-7. Thus, Appellant asserts that, even if some structures in Thomas's diaper can be creased and/or wrinkled when the diaper is folded or bent as illustrated in Figs. 5 and 6 of Thomas, these structures do not have an uneven surface "formed by a shrinkage stress of the elastic member," as recited in claim 1. App. Br. 7; Reply Br. 2. We are unpersuaded by these arguments. As the Examiner notes, Thomas teaches that the extensible layer can be in a stretched state when attached to other layers in the laminate. Ans. 7; Thomas ,r,r 27, 122. While Appellant argues that Thomas uses extensible layers which, unlike elastic strands, can be stretched in multiple directions (App. Br. 10; Reply Br. 4; Thomas ,r,r 21, 52), Thomas also discloses an embodiment where one of the 4 Appeal2019-000088 Application 15/168,624 layers is a necked layer when the laminate is constructed and stretching the nonwoven web to have a necked width that is less than the starting width of the material. Thomas ,r 122. This disclosure suggests that Thomas' s nonwoven web may be stretched in one direction or multiple directions. Therefore, one skilled in the art would have reasonably expected that an uneven surface comprising shirring portions would form upon release of the nonwoven web in this embodiment, as claimed. Ans. 7-8; In re O'Farrell, 853 F.2d 894, 904 (Fed. Cir. 1988) ("For obviousness underÂ§ 103, all that is required is a reasonable expectation of success."). Appellant has not adequately presented arguments to the contrary. Appellant argues that Thomas' s disclosure teaches away from uneven surfaces because it produces an elastic laminate by using a frangible material sandwiched between elastic layers. App. Br. 8-9; Thomas ,r,r 4. According to Appellant, Thomas' s use of a frangible material in place of gathered layers would not necessitate forming an uneven gathered surface with shirring portions in the laminate. App. Br. 9. Thus, Appellant asserts that the Examiner has ignored the very purpose of Thomas' s invention. Id. We also find these arguments unavailing for the reasons presented by the Examiner. Ans. 9. As discussed above, Thomas contemplates the use of a nonwoven elastic material that is stretched in one direction to make a desired product. Thomas ,r 122. That is, Thomas does not exclude the use stretched elastic material in the disclosed invention. Appellant focuses the arguments on the embodiment of Figures 7 and 8, which shows a laminate without an uneven surface. App. Br. 6-7; Reply Br. 2. While Thomas does disclose embodiments where the nonwoven elastic layer is attached in a relaxed state (Thomas ,r 122), Thomas also discloses embodiments where 5 Appeal2019-000088 Application 15/168,624 the nonwoven elastic layer is attached in a stretched state (id.). It is well settled that a reference may be relied upon for all that it discloses and not merely the preferred embodiments as suggested by Appellant. See Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) ("[A]ll disclosures of the prior art, including unpreferred embodiments, must be considered." (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976))); In reFracalossi, 681 F.2d 792, 794n.1 (CCPA 1982) (explaining that a prior art reference's disclosure is not limited to its examples). The disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or non-preferred embodiments. In re Susi, 440 F .2d 442,446 n.3 (CCPA 1971). Appellant has not adequately explained why the embodiment illustrated in Thomas' s Figures 7 and 8 limits the broader disclosure of the reference or teaches away from the claimed invention. Appellant additionally argues Thomas prepares a laminate to address the problems associated with gathered laminates produced by attaching a stretched elastic film or filament to surface layers while Een produces a laminate by stretching elastic stands and attaching the stretched elastic strands to nonwoven surface layers to improve smoothness, softness, flexibility, and breathability of the laminate. App. Br. 9; Reply Br. 3; Thomas ,r 4; Een 2. 10-13. According to Appellant, Thomas criticizes Een's process and, thus, one of ordinary skill in the art would not have been led to modify Thomas to use stretched elastic strands, as described in Een, because doing so would be contradictory to Thomas' s very purpose of using a frangible material to increase the lofty feel, softness, and comfort of the laminate without forming a gather. App. Br. 9-10; Thomas ,r 4. We are also unpersuaded by these arguments for the reasons presented 6 Appeal2019-000088 Application 15/168,624 by the Examiner. Ans. 9-10. We first note that Appellant has not adequately established that Thomas criticizes Een's process because Een, like Thomas, addresses issues with respect to the prior art use of elastic strands in laminates. Thomas ,r,r 2, 4; Een 1. Further, both Thomas and Een are directed to disposable products. Thomas ,r 13 5; Een 21. In addition, as previously noted, Thomas contemplates the use of elastic nonwoven webs stretched in a single direction for the disclosed laminates. Thomas ,r 122. Given Thomas's disclosure, Appellant has not adequately explained why one skilled in the art would not look at alternate methods of attaching elastic materials, such as Een' s method, to make an improved disposable product. Claim 6 Claim 6 requires that the second fibrous sheet and the fiber material are joined together by a hot-melt adhesive. We have considered Appellant's argument that the cited references do not suggest the use of hot melt adhesives as claimed (App. Br. 11), but are unpersuaded. As the Examiner notes, Een discloses that the use of hot melt adhesives is known for bonding layers together in making disposable products. Ans. 6; Een Abst., 12. Given that Thomas also teaches the use of adhesives for bonding the layers together (Thomas ,r 121 ), we agree with the Examiner's determination that it would have been obvious to one skilled in the art to use hot melt adhesives to bond the elastic material in making the desired laminate. Appellant has not adequately argued to the contrary. Accordingly, we affirm the Examiner's prior art rejection of claims 7 Appeal2019-000088 Application 15/168,624 1-8 and 10-22 for the reasons presented by the Examiner and given above. ORDER The Examiner's prior art rejection of claims 1-8 and 10-22 under 35 U.S.C. Â§ 103(a) is affirmed. TIME PERIOD 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). AFFIRMED 8