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Decision


Application number: 11/130,877
Appeal number: 2015-001521
Publication number: 2005/0214506A1
Publication date: September 29, 2005
Decision date: January 24, 2017
Style name: Ex Parte Lee et al
Full title: Ex Parte Yann-Per Lee, Saeed Ferestehkhou,
Reexamination: False
Reexamination number: None
Correspondant name:
Filing date: May 17, 2005
Examiner name: Vargot, Mathieu D
Group art unit: 1742
Confirmation number: 3766
Attorney docket number:
Class: 264
Subclass: 444
First named inventor: Yann-Per Lee
Title of invention: Apertured polymeric film webs and absorbent articles using such webs
Patent number:
Reexamination: False
Reissue: False
Non-Substantive:
Oral hearing: False
Oral hearing date: None
Board initiated:
Review Status :

Panel Judges: Chung K. Pak, Jennifer R. Gupta, Terry J. Owens

Claims

Claims:
Issue: §Obviousness-type double patenting
Outcome: Affirmed

Claims:
Issue: §103(a)
Outcome: Reversed




Opinion Text

Judge: Terry J. Owens







STATEMENT OF THE CASE



The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s

rejection of claims 32, 34, and 35. We have jurisdiction under

35 U.S.C. § 6(b).

The Invention

The Appellants claim a method for making an apertured polymeric

film-based web. Claim 32 is illustrative:

32. A method for making an apertured polymeric

film-based web for use as an absorbent article topsheet, said

method comprising the steps of:



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Application 11/130,877

a. providing a vacuum forming structure comprising a

plurality of perforations, a first side and an opposing second

side;

b. extruding a resinous melt onto the first side of the

perforated vacuum forming structure;

c. providing a vacuum on the second side of the

perforated vacuum forming structure so that portions of the

resinous melt are drawn into the plurality of perforations to

form a film having a first plurality of apertures having a first

diameter and a height extending from a first surface of the film;

d. thereafter contacting the film having a first plurality of

apertures with needles or heatable pins to define a second

plurality of apertures having a second diameter that is greater

than the first diameter, wherein discrete needles or pins

associated with this step enables the first plurality of

apertures in areas not impacted by the discrete needles/pins to

remain substantially unaltered relative to their as-made state;

e. wherein the first surface of the film defines a wearer­

contacting surface of the web, and wherein the first surface of

the film is hydrophilic;

f. wherein sidewalls of the second plurality of apertures

extend in a direction away from the wearer-contacting surface.

The Rejections

Claims 32, 34, and 35 stand rejected under 35 U.S.C. § 103 over the

Appellants’ admitted prior art and provisionally on the ground of

nonstatutory obviousness-type double patenting over claim 17 of copending

Application No. 12/193,325.1



OPINION



We reverse the rejection under 35 U.S.C. § 103 and affirm the

provisional obviousness-type double patenting rejection.

1 For the Appellants’ admitted prior art the Examiner cites to the Appellants’

Patent Application Publication US 2005/0214506 A1 (Sep. 29, 2005)

(Ans. 2). For consistency we likewise do so.

2



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Appeal 2015-001521

Application 11/130,877

Rejection under 35 U.S.C. §103

We need address only the sole independent claim, i.e., claim 32. That

claim requires forming apertures in a polymeric film first by vacuum

forming and then by discrete needles/pins.

The Appellants acknowledge that the prior art includes a method

wherein three dimensional surface structures (apertures 300) and fluid

transport apertures (310) are formed in a polymeric film by a

double-hydroforming process (150; Fig. 3) and that it was known in the art

to form apertures by vacuum forming and by mechanical methods including

heated needles and heated pins flflf 81—82, 91).

The Examiner finds that the Appellants admit that the known

aperture-forming methods are functional equivalents (Ans. 3—4, 6—9).

The Examiner does not point out any portion of the Appellants’

Specification which supports that finding, and the Appellants challenge the

finding (Reply Br. 3). Accordingly, we do not accept the finding as fact.

See In re Kunzmann, 326 F.2d 424, 425 n.3 (CCPA 1964). Consequently,

the Examiner’s conclusion based on the finding, i.e., that “[i]t would have

been obvious to one of ordinary skill in the art at the time invention to have

modified the double hydroforming process of the admitted prior art that

forms the article in instant Figure 3 with the well-known aperture forming

methods also taught in the prior art as disclosed in instant paragraphs

0080-0082, 0089 and 0091 since they are known to be functionally

equivalent” (Ans. 4), is not well taken.

The Examiner finds that “there are a limited number of methods by

which the three dimensional patteming/microaperturing and forming of

larger diameter fluid transport apertures are conventionally made” (Ans. 4),

3



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Application 11/130,877

and based on that finding concludes that “it would have been obvious to one

of ordinary skill in the art to pick and choose suitable methods based on

availability and convenience” (id.).

The Examiner does not point to support in the Appellants’ admitted

prior art for that conclusion. In the Appellants’ admitted prior art relied

upon by the Examiner, both the three dimensional surface structures and the

fluid transport apertures are formed by the same method (hydroforming)

(150). The Examiner does not establish that the prior art discloses or would

have suggested, to one of ordinary skill in the art, use of different aperture

forming methods in sequence.

Thus, the record indicates that the rejection is based upon

impermissible hindsight in view of the Appellants’ disclosure. See In re

Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“A rejection based on

section 103 clearly must rest on a factual basis, and these facts must be

interpreted without hindsight reconstruction of the invention from the prior

art”). Accordingly, we reverse the rejection under 35 U.S.C. § 103.

Provisional obviousness-type double patenting rejection

The Appellants do not challenge the provisional obviousness-type

double patenting rejection (App. Br. 2). We therefore summarily affirm that

rejection.



DECISION/ORDER



The rejection of claims 32, 34, and 35 under 35 U.S.C. § 103 over the

Appellants’ admitted prior art is reversed. The rejection of claims 32, 34,

and 35 provisionally on the ground of nonstatutory obviousness-type double

patenting over claim 17 of copending Application No. 12/193,325 is

affirmed.

4



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Appeal 2015-001521

Application 11/130,877

It is ordered that the Examiner’s decision 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).



AFFIRMED



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