Ex Parte Collins et alDownload PDFBoard of Patent Appeals and InterferencesJul 30, 201211444847 (B.P.A.I. Jul. 30, 2012) Copy Citation 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). Appeal 2011-006209 Application 11/444,847 2 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). Appeal 2011-006209 Application 11/444,847 3 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 Appeal 2011-006209 Application 11/444,847 4 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). Appeal 2011-006209 Application 11/444,847 5 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: Appeal 2011-006209 Application 11/444,847 6 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: Appeal 2011-006209 Application 11/444,847 7 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. Appeal 2011-006209 Application 11/444,847 8 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. Appeal 2011-006209 Application 11/444,847 9 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). Appeal 2011-006209 Application 11/444,847 10 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. Appeal 2011-006209 Application 11/444,847 11 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 Appeal 2011-006209 Application 11/444,847 12 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. Appeal 2011-006209 Application 11/444,847 13 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. Appeal 2011-006209 Application 11/444,847 14 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 dm Copy with citationCopy as parenthetical citation