Ex Parte Collins et al

Board of Patent Appeals and Interferences

Jul 30, 2012

11444847 (B.P.A.I. Jul. 30, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/444,847 05/31/2006 Meghan E. Collins 64049221US01 7586
23556 7590 07/31/2012
KIMBERLY-CLARK WORLDWIDE, INC.
Tara Pohlkotte
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
KIDWELL, MICHELE M
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
07/31/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte MEGHAN E. COLLINS, THOMAS M. ALES III,
SHIRLEE A. WEBER, and ANDREW M. LONG
__________

Appeal 2011-006209
Application 11/444,847
Technology Center 3700
__________

Before TONI R. SCHEINER, ERIC GRIMES, and
JACQUELINE WRIGHT BONILLA Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-5, 7-22, and 24-27, directed to an absorbent article with a wetness
sensing system. The claims have been rejected on the grounds of
anticipation and obviousness. We have jurisdiction under 35 U.S.C. § 6(b).
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STATEMENT OF THE CASE
The Specification teaches that “various types of sensors and
indicators, including moisture and wetness indicators” which produce “a
visual or audible signal” are used in absorbent articles (Spec. 1: 10-16). In
some cases, “although the absorbent articles may be disposable, the
signaling devices are not . . . [and] are intended to be removed from the
article and reattached to a subsequent article” (id. at 1: 25-27). The
Specification discloses an absorbent article with a transferrable signaling
device. Figure 1 of the Specification is reproduced immediately below:

Figure 1 of the Specification depicts a “wetness sensing absorbent article”
20, with a signaling device 110 (in this instance, made up of a transmitter
112 and a receiver 114) that emits a signal when a body fluid is present (id.
at 13: 7-33).
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According to the Specification, “transferring signaling devices
between articles, in a hectic medical, institutional, or home setting can be
difficult, especially where proper alignment of the signaling device with the
absorbent article is essential” (id. at 1:30 - 2: 3). The present invention is
directed to an absorbent article system with “an alignment aid to help a user
ensure that the signaling device 110 is properly positioned on the absorbent
device 20” (id. at 14: 26-27).
Claims 1-5, 7-22, and 24-27 are pending and on appeal. Claims 6, 23,
and 28 have been canceled (App. Br. 1).
Claims 1, 24 and 27 are representative of the subject matter on appeal:
1. A sensing absorbent article system comprising:
a sensing means;
a graphic article design scheme, and
an attachment zone having an attachment design scheme, wherein the
attachment design scheme is visually differentiable from the article design
scheme; and
a signaling device adapted to be coupled to the absorbent article in the
attachment zone, wherein the signaling device has a pair of terminals and a
signaling device design independent of the pair of terminals, wherein the
signaling device design scheme aligns with one of the article design scheme
and the attachment zone design scheme when the signaling device is
properly coupled to the absorbent article.
24. A sensing absorbent article system comprising:
an absorbent article having a liner and an outer cover, the absorbent
article including a portion of a graphic visual characteristic; and
a signaling device adapted to connect with the absorbent article, the
signaling device having another portion of the graphic visual characteristic,
wherein signaling device when properly aligned with the absorbent article
forms a complete graphic visual characteristic.
27. A sensing absorbent article system comprising:
an absorbent article having a liner and an outer cover, the absorbent
article including a conductive element; and
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a signaling device adapted to connect with the absorbent article, the
signaling device having a size, a shape, a pair of terminals and a signaling
device design scheme independent of the size and shape of the signaling
device and of the pair of terminals, wherein the signaling device design
scheme is adapted to align with the conductive element.
The Examiner relies on the following evidence:
Kline et al. US 5,392,032 Feb. 21, 1995
Nissim et al. US 5,760,694 Jun. 2, 1998
Molina et al. US 2003/0106825 A1 Jun. 12, 2003
Bobadilla US 2004/0087922 A1 May 6, 2004
The claims stand rejected as follows:
I. Claims 1, 3, 7, 8, 14-16, and 24-27 under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
unpatentable over Nissim (Ans. 4-6);
II. Claims 2, 4, and 5 under 35 U.S.C. § 103(a) as unpatentable
over Nissim (Ans. 6-7);
III. Claims 9, 11-13, and 17-20 under 35 U.S.C. § 103(a) as
unpatentable over Nissim and Kline (Ans. 7-8);
IV. Claim 10 under 35 U.S.C. § 103(a) as unpatentable over Nissim
and Bobadilla (Ans. 8-9); and
V. Claims 21 and 22 under 35 U.S.C. § 103(a) as unpatentable
over Nissim and Molina (Ans. 9).
FINDINGS OF FACT
1. According to the Specification, “[t]he article design scheme
refers primarily to the design of the absorbent article 20, including its visual
characteristics such as its shape, its coloring, and the graphics associated
with it” (Spec. 15: 2-5). “Graphics may be depicted on the absorbent article
20 by printing or by any other suitable means” (id. at 15: 18-19).
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Similarly, “[t]he attachment zone design scheme refers primarily to
the design of the attachment zone 120, including its visual characteristics
such as its shape, its coloring, and the graphics associated with it” (id. at 15:
2-5).
Finally, “[t]he signaling device design scheme refers primarily to the
design of the signaling device 110, including its visual and other
characteristics such as its shape, its coloring, the sound or sounds it
produces, the other signals it produces, and the graphics associated with it”
(id. at 16: 25-28).
2. The Specification does not define the term “graphics,” but does
distinguish it as a design element other than shape (see FF1).
3. Nissim discloses an absorbent article with a pouch bonded to
the article, wherein the pouch is adapted to receive a removable wetness
sensor (Nissim, col. 2, ll. 36-39). Figure 2 of Nissim is reproduced below:

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Figure 2 of Nissim depicts a disposable diaper 100 with a pouch 120.
The pouch is adapted to receive a removable wetness sensor 124.
4. Nissim’s sensor also serves as an alarm when wetness is
detected (id. at col. 3, ll. 11-30). The alarm “plays a tune or makes some
other sound such as a beep” or “takes the form of a blinking or turned on
light, such as an LED” (id. at col. 3, ll. 31-34).
5. Kline discloses a wetness sensing device and alarm which is
“either attached directly to the external surface of the diaper, or . . . to the
waterproof or plastic pants placed over the . . . diaper” (Kline, col. 2, ll. 25-
44). The alarm, which is triggered when the diaper becomes wet, may be
audible, visual (e.g., a blinking light), or both (id. at col. 2, ll. 50-68),
6. Figures 5 and 6 of Kline are reproduced below:

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Figures 5 and 6 of Kline depict the wetness sensing device 51,
contained within a cushioning means 52, “which may be formed into a
decorative shape” and mounted on a diaper cover 50, as shown in Figure 6
(Kline, col. 4, ll. 48-52).

PRINCIPLES OF LAW
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). The obviousness
“analysis need not seek out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ.”
Id. at 418. See also id. at 421 (“A person of ordinary skill is also a person
of ordinary creativity, not an automaton.”).
DISCUSSION
I: Anticipation by or Obviousness over Nissim
Claims 1, 3, 7, 8, 14-16, and 24-27 stand rejected as anticipated by, or
obvious over, Nissim.
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Claims 1, 3, 7, 8, and 14-16:
The Examiner finds that Nissim discloses a wetness sensing absorbent
article system that includes an absorbent article, an attachment zone, and a
wetness sensing/signaling device adapted to be coupled to the absorbent
article, each of which has a design scheme as defined by the Specification
(e.g., shape), “wherein the signaling device design scheme aligns with . . .
the attachment zone design scheme when the signaling device is properly
couple[d] to the absorbent article” (Ans. 4-5). With respect to the
requirement for a graphic article design scheme, the Examiner finds that “the
light associated with [Nissim’s] article . . . may be considered as graphic, as
graphic is defined as a visual representation” (id. at 5).
Appellants correctly point out that Nissim’s light (e.g., an LED) is
associated with the signaling device, not the absorbent article, as required by
claim 1 (App. Br. 5; see FF4). Thus, even if we were to agree with the
Examiner that an LED display is a graphic design scheme as the term
“graphic” is used in the Specification and claims, we agree with Appellants
that Nissim does not anticipate the invention of claim 1.
However, in an alternative rationale, the Examiner concludes that it
would have been obvious “to provide a graphic article design scheme since
the substitution of one type of article design scheme for another is within the
level [of] ordinary skill in the art” (Ans. 5).
We agree with the Examiner on this point. In our view, providing
Nissim’s absorbent article with a graphic article design scheme would have
been within the ambit of “the inferences and creative steps that a person of
ordinary skill in the art would employ” and would have yielded entirely
predictable results. KSR, 550 U.S. at 421.
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Accordingly, the rejection of claim 1 as obvious over Nissim is
affirmed, and claims 3, 7, 8, and 14-16 fall with claim 1 as they were not
separately argued. 37 C.F.R § 41.37(c)(1)(vii).
Claims 24-26:
Claim 24 requires complementary graphics on both the absorbent
article and the signaling device, that form a “complete graphic visual
characteristic” when the absorbent article and the signaling device are
properly aligned. Claims 25 and 26 require a “graphic visual characteristic”
on the absorbent article, wherein a portion of the graphic is missing, and the
missing portion matches the shape and/or size of the signaling device.
While we agree with the Examiner that it would have been obvious to
put graphics on the absorbent article for the reason discussed above, we
agree with Appellants that Nissim, alone, does not teach or suggest graphics
with a complementary or cooperative relationship disposed on different
elements of the system.
Claim 27:
Claim 27 requires a signaling device with “a signaling device design
scheme independent of the size and shape of the signaling device and of the
pair of terminals, wherein the signaling device design scheme is adapted to
align with the conductive element.”
The Examiner finds that Nissim’s signaling device has a color and a
hardness, independent of the size and shape of the signaling device and of
the pair of terminals (Ans. 6). However, as Appellants point out, the
Examiner has not explained how either of these design elements is adapted
to align with the conductive element in Nissim’s absorbent article (App. Br.
6).
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Accordingly, the rejection of claims 24-27 as anticipated by, or
obvious over Nissim is reversed.
II: Obviousness over Nissim
Claims 2, 4, and 5 stand rejected as unpatentable over Nissim.
Claim 2 depends from claim 1, and requires that the attachment zone
contains text. Claim 4 depends from claim 1 and requires that the
attachment zone design scheme includes a faded portion of the graphic
article design scheme, while claim 5 depends from claim 4 and further
requires that the signaling device includes a less faded version of the
attachment zone design scheme.
We agree with Appellants that the Examiner’s conclusory statement
that “it would have been obvious . . . to provide alternative schemes in the
form of text and/or faded portions in order to provide an alternate instruction
for fastening consistent with the disclosed theme” (Ans. 7), is insufficient to
establish that the required specific cooperative relationship (between the
graphic design scheme on the absorbent article and design elements on the
attachment zone and/or signaling device) would have been obvious over
Nissim alone.
The rejection of claims 2, 4, and 5 as unpatentable over Nissim is
reversed.
III: Obviousness over Nissim and Kline
Claims 9, 11-13, and 17-20 stand rejected as unpatentable over Nissim
and Kline.
Claim 9:
Claim 9 depends from claim 1 and requires that the attachment design
scheme includes a schematic drawing of the signaling device.
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The Examiner finds that Kline “teaches a system wherein the
attachment zone design scheme includes a schematic drawing of the
signaling device [element B] as set forth in figure 8” (Ans. 7), and concludes
that it would have been obvious to provide Nissim’s absorbent article with
an attachment zone comprising a schematic drawing of the signaling device
(id.).
However, as correctly pointed out by Appellants, element B of Kline’s
Figure 8 “does not actually appear on the article,” and is merely an
“imaginary projection” that indicates the first area of the diaper to
experience wetness in use (App. Br. 7).
The rejection of claims 9 as unpatentable over Nissim and Kline is
reversed.
Claims 11-13 and 17-20:
Claims 17-20 depend directly or indirectly from claim 1 and require
that the article design scheme includes a graphic, wherein the graphic is a
cartoon (claim 18), a geometric design (claim 19), or a color (claim 20).
The Examiner finds that “Kline discloses a system wherein the article
design scheme includes a colored . . . cartoon graphic having a geometric
design as set forth in figure 5-6” (Ans. 8).
Appellants contend that “there is nothing related to a ‘colored cartoon
graphic having a geometric design’ at that location or anywhere else in
Kline” and “the words color, cartoon, graphic, geometric, and design do not
appear anywhere in Kline” (App. Br. 7).
Appellants’ argument is not persuasive. First, we agree with the
Examiner that it would have been obvious for one of ordinary skill in the art
to provide Nissim’s absorbent article with a graphic article design scheme
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for the reason discussed above in connection with claim 1. Second, Kline
plainly depicts cartoon graphics on elements of its wetness sensing system
(FF6); in our view, presenting the graphics in color, or using graphics with a
geometric shape is yet another example of “the inferences and creative steps
that a person of ordinary skill in the art would employ.” KSR, 550 U.S. at
421.
Accordingly, the rejection of claims 17-20 as unpatentable over
Nissim and Klineis affirmed, and claims 11-13 fall with claims 17-20 as
Appellants do not provide separate arguments for these claims. See 37
C.F.R. § 41.37(c)(1)(vii).
IV: Obviousness over Nissim and Bobadilla
Claim 10 stands rejected as unpatentable over Nissim and Bobadilla.
Claim 10 requires an attachment zone design scheme with a targeting
graphic, and a translucent portion on the signaling device to allow a user to
visually align the signaling device with the targeting graphic.
Bobadilla discloses a diaper with a litmus paper sensor covered with a
translucent panel to allow viewing of the litmus paper (Bobadilla ¶ 14).
Again, claim 10 requires a cooperative relationship between the
components of the wetness sensing system that is not suggested by Nissim,
alone, or in combination with Bobadilla.
The rejection of claim 10 as unpatentable over Nissim and Bobadilla
is reversed.
V: Obviousness over Nissim and Molina
Claims 21 and 22 stand rejected as unpatentable over Nissim and
Molina.
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Claims 21 and 22 are directed to a multipack of the absorbent articles
of claim 1.
Appellants contend that “Molina does not correct the deficiencies of
Nissim with respect to claim 1 from which these claims depend because
Molina discloses neither a graphic article design scheme nor an attachment
zone design scheme” (App. Br. 8).
Appellants’ argument is not persuasive as we have concluded that
Nissim is not deficient with respect to these elements.
The rejection of claims 21 and 22 as unpatentable over Nissim and
Molina is affirmed.
SUMMARY
I. The rejection of claims 1, 3, 7, 8, 14-16, and 24-27 under 35
U.S.C. § 102(b) as anticipated by or, in the alternative, under 35 U.S.C.
§ 103(a) as unpatentable over Nissim is affirmed with respect to claims 1, 3,
7, 8, and 14-16, and reversed with respect to claims 24-27;
II. The rejection of claims 2, 4, and 5 under 35 U.S.C. § 103(a) as
unpatentable over Nissim is reversed;
III. The rejection of claims 9, 11-13, and 17-20 under 35 U.S.C.
§ 103(a) as unpatentable over Nissim and Kline is affirmed with respect to
claims 11-13 and 17-20, and reversed with respect to claim 9;
IV. The rejection of claim 10 under 35 U.S.C. § 103(a) as
unpatentable over Nissim and Bobadilla is reversed; and
V. The rejection of claims 21 and 22 under 35 U.S.C. § 103(a) as
unpatentable over Nissim and Molina is affirmed.
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TIME PERIOD FOR RESPONSE
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-IN-PART

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