The Proctor & Gamble Company

Patent Trials and Appeals Board

Jan 13, 2022

2021000226 (P.T.A.B. Jan. 13, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/337,453 10/28/2016 Juliane KAMPHUS CM4370Q 8632 27752 7590 01/13/2022 THE PROCTER & GAMBLE COMPANY GLOBAL IP SERVICES CENTRAL BUILDING, C9 ONE PROCTER AND GAMBLE PLAZA CINCINNATI, OH 45202 EXAMINER KIDWELL, MICHELE M ART UNIT PAPER NUMBER 3781 NOTIFICATION DATE DELIVERY MODE 01/13/2022 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 mayer.jk@pg.com pair_pg@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JULIANE KAMPHUS ____________ Appeal 2021-000226 Application 15/337,453 Technology Center 3700 ____________ Before JAMES P. CALVE, CYNTHIA L. MURPHY, and AMEE A. SHAH, Administrative Patent Judges. SHAH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s final decision to reject claims 1-14 and 16-21, which are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2019). The Appellant identifies the real party in interest as “The Procter & Gamble Company of Cincinnati, Ohio.” Appeal Br. 1. Appeal 2021-000226 Application 15/337,453 2 CLAIMED SUBJECT MATTER The Appellant’s invention relates to “absorbent cores for use in absorbent hygiene articles such as, but not limited to baby diapers, training pants, feminine hygiene sanitary pads and adult incontinence products.” Spec. 1. Claims 1, 14, and 16 are the independent claims on appeal. Claim 1 (Appeal Br. 9 (Claims App.)) is illustrative of the subject matter on appeal and is reproduced below (with added bracketed notations for reference): 1. An absorbent core for an absorbent article comprising: [(a)] a core wrap enclosing an absorbent material, the absorbent material comprising superabsorbent polymer particles; [(b)] wherein the core wrap comprises a top side and a bottom side; [(c)] wherein the absorbent core comprises one or more area(s) substantially free of absorbent material through which the top side of the core wrap is attached to the bottom side of the core wrap, so that when the absorbent material swells the core wrap forms one or more channel(s) along the area(s) substantially free of absorbent material; [(d)] wherein portions of the top side of the core wrap are bonded to an additional layer in the one or more area(s) substantially free of absorbent material; [(e)] wherein the superabsorbent polymer particles have a value of Effective Capacity (EFFC) of at least 27 g/g; [(f)] wherein the Effective Capacity (EFFC) is calculated via the formula below: EFFC = (CRC+AAP)/2; [(g)] wherein the Centrifuge Retention Capacity (CRC) is measured according to the Centrifuge Retention Capacity (CRC) Test Method and the Absorption Against Pressure (AAP) is measured according to the Absorption Against Pressure (AAP) Test Method; and Appeal 2021-000226 Application 15/337,453 3 [(h)] wherein the superabsorbent polymer particles have a bulk density of at least 0.5 g/ml according to the Bulk Density Test Method. THE REJECTION2 Claims 1-14 and 16-21 stand rejected under 35 U.S.C. § 103 as unpatentable over Arizti et al. (US 2014/0163503 A1, pub. June 12, 2014) (“Arizti”). OPINION The Examiner finds that Arizti discloses the absorbent core of claim 1 comprising a core wrap with top and bottom sides and one or more areas substantially free of absorbent materials and wherein portions of the top side are bonded to an additional layer as recited in limitations (a) through (d). Final Act. 7. The Examiner finds “[t]he difference between Arizti and claim 1 is the explicit recitation of the superabsorbent material having the claimed values and bulk density,” as recited in limitations (e) through (h). Id. However, the Examiner finds that as “Arizti does teach the superabsorbent materials comprising the same materials as the instant application and having at least one value of the amount of superabsorbent in the claimed range,” Arizti meets “the structural requirements of the claim and it can therefore be reasonably presumed that the superabsorbent of Arizti 2 The Final Action includes a provisional rejection under the doctrine of non-statutory double patenting of claims 1-14 and 16-21 over claims 1-15 of then co-pending Application No. 15/337,358. Final Act. 5. Application No. 15/337,358 was issued on April 28, 2020 as Patent No. 10632029. Although there is no indication that this rejection was withdrawn, the Answer does not include this rejection under the “ground(s) of rejection [that] are applicable to the appealed claims.” Ans. 3. Thus, we do not consider this rejection pending on appeal. Appeal 2021-000226 Application 15/337,453 4 would include the values as claimed if subjected to the same testing.” Id. The Examiner finds “[p]roducts of identical chemical composition can not have mutually exclusive properties” (id. at 8 (quoting In re Spada, 911 F.2d 705, 709 (Fed. Cir. 1990))) and “[a] chemical composition and its properties are inseparable” (id.). The Examiner determines “[t]herefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. See MPEP 2112.01.” Id. The Appellant contends that the Examiner’s rejection is in error because the Examiner errs in (1) finding that Arizti discloses the top side bonded to an additional layer as recited in limitation (d) (Appeal Br. 5-6) and (2) not “provid[ing] a basis in fact and/or technical reasoning to reasonably support the determination that the allegedly inherent characteristics necessarily flow from the teachings of Arizti” (id. at 7-8). We are not persuaded of error by these arguments. Regarding the Appellant’s first contention, we agree with and adopt the Examiner’s finding that Arizti discloses the top side bonded to an additional layer as recited limitation (d) and as explained in the Answer at pages 9 and 10. And we agree with the Examiner (see Ans. 10) that the Appellant’s argument that the bonding as recited in claim 1 must provide the ditches with an additional layer (see Appeal Br. 6) is not persuasive as it is not commensurate with the scope of the claim. Regarding the Appellant’s second contention, we find that the Examiner has shown a sound basis for believing that the superabsorbent polymers of the Appellant and of Arizti are the same. See Ans. 11. In particular, we note that the Specification defines “superabsorbent polymers” as “absorbent material which are cross-linked polymeric materials that can Appeal 2021-000226 Application 15/337,453 5 absorb at least 10 times their weight of an aqueous 0.9% saline solution as measured using the Centrifuge Retention Capacity (CRC) test (EDANA method WSP 241.2-05).” Spec. 12. Arizti identically defines “superabsorbent polymers” as “absorbent material which are cross-linked polymeric materials that can absorb at least 10 times their weight of an aqueous 0.9% saline solution as measured using the Centrifuge Retention Capacity (CRC) test (EDANA method WSP 241.2-05E).” Arizti ¶ 56. Both the Specification and Arizti provide: Typical particulate absorbent polymer materials are made of poly(meth)acrylic acid polymers. However, e.g. starch-based particulate absorbent polymer material may also be used, as well polyacrylamide copolymer, ethylene maleic anhydride copolymer, cross-linked carboxymethylcellulose, polyvinyl alcohol copolymers, cross-linked polyethylene oxide, and starch grafted copolymer of polyacrylonitrile. The superabsorbent polymer may be polyacrylates and polyacrylic acid polymers that are internally and/or surface cross-linked. Spec. 13; Arizti ¶ 57. And, both provide that the superabsorbent polymers can be or are preferably “internally cross-linked, i.e. the polymerization is carried out in the presence of compounds having two or more polymerizable groups which can be free-radically copolymerized into the polymer network.” Id. The Specification provides “[e]xemplary superabsorbent polymer particles of the prior art are for example described in WO2006/083584, WO2007/047598, WO2007/046052, WO2009/155265, WO2009/155264.” Spec. 13. Arizti provides for examples of suitable materials as described in those same publications. Arizti ¶ 57. And, we note that the Appellant does not contend that the materials are not the same. Thus, the Examiner establishes a prima facie case of anticipation and/or obviousness. MPEP § 2112.01(I) (R-10.2019, June 2020) (“Where the Appeal 2021-000226 Application 15/337,453 6 claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” (citing In re Best, 562 F.2d 1252, 1255 (CCPA 1977))); see also Spada, 911 F.2d at 708 (“The discovery of a new property or use of a previously known composition, even when that property and use are unobvious from the prior art, can not impart patentability to claims to the known composition. . . . Thus, the initial inquiry is to the novelty of the composition.” (citing cases)). The Appellant argues that the Examiner has not met the burden of “establish[ing] that the allegedly inherent characteristics necessarily flow from the teachings of Arizti.” Appeal Br. 8; see also id. at 7. The Appellant’s argument misapprehends the Examiner’s burden. Once a prima facie case of anticipation has been established, as it has been here, the burden shifts to the Appellant to prove that the prior art material does not necessarily or inherently possess the characteristics of the claimed material. Best, 562 F.2d at 1255 (“Where, as here, 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.”); see also Spada, 911 F.2d at 708-09; In re Fracalossi, 681 F.2d 792, 794 (CCPA 1982) (“An old composition cannot be converted into an unobvious composition simply by inept references to obviousness. Nor can that be done through discussion of the concept of “Inherency”, which is a fact question.”). Appeal 2021-000226 Application 15/337,453 7 The Appellant fails to meet this burden. The Appellant’s contention that Arizti fails to teach the claimed characteristic values on the superabsorbent polymer particles does not prove that the materials of Arizti, which are the same as the Appellant’s, do not necessarily or inherently possess the characteristics claimed. We note that the Appellant does not describe or discuss how the claimed materials reach the values claimed, i.e., what in the materials achieves those values. See Spec. 14-15. And, we note that Arizti teaches that its materials possess the same Centrifuge Retention Capacity as provided in the Specification. Arizti ¶ 57; Spec. 13. The Appellant does not show that Arizti’s materials, which are the same as those described in the Specification, do not possess the claimed characteristic values. Thus, we are not persuaded of error in the Examiner’s rejection of independent claim 1 under 35 U.S.C. § 103. See Fracalossi, 681 F.2d at 794 (“As we noted in In re Pearson, 494 F.2d 1399, 1402, . . . (C.C.P.A. 1974): (T)his court has sanctioned the practice of nominally basing rejections on § 103 when, in fact, the actual ground of rejection is that the claims are anticipated by the prior art. See In re Dailey, 479 F.2d 1398, . . . (C.C.P.A. 1973). The justification for this sanction is that a lack of novelty in the claimed subject matter, e.g., as evidenced by a complete disclosure of the invention in the prior art, is the ‘ultimate or epitome of obviousness.’ In re Kalm, 54 C.C.P.A. 1466, 1470, 378 F.2d 959, 962, . . . (1967).” (emphasis added)). We are not persuaded of error in the Examiner’s rejection of independent claims 14 and 16 under 35 U.S.C. § 103 as the Appellant relies on the same arguments for these claims as presented for claim 1. Appeal Br. 8. Appeal 2021-000226 Application 15/337,453 8 We also sustain the Examiner’s rejection under 35 U.S.C. § 103 of independent claims 1, 14, and 16 and of dependent claims 2-13 and 17-21, for which the Appellant provides no separate argument. CONCLUSION The Examiner’s decision to reject claims 1-14 and 16-21 is affirmed. In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed 1-14, 16-21 103 Arizti 1-14, 16-21 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED