Ex Parte StenbergDownload PDFPatent Trial and Appeal BoardNov 7, 201311839589 (P.T.A.B. Nov. 7, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte ANDERS STENBERG1 __________ Appeal 2011-011577 Application 11/839,589 Technology Center 3700 __________ Before DEMETRA J. MILLS, ERIC GRIMES, and JEFFREY N. FREDMAN, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to a method of marking an absorbent article, which have been rejected as anticipated or obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 Appellant identifies the Real Party in Interest as SCA Hygiene Products AB (Appeal Br. 1). Appeal 2011-011577 Application 11/839,589 2 STATEMENT OF THE CASE “Wetness indicators especially on diapers and incontinence guards for adult incontinent persons, have been known for several years” (Spec. 1). “The wetness indicator can be arranged at different locations . . . [making it] difficult for the nurse to locate the wetness indicator on the article in order to read it.” (Id. at 2.) The Specification describes “mak[ing] it easier for the nurse to identify the location of the wetness indicator on the article . . . by applying the wetness indicator on or adjacent at least one strip having a color or tint different from the rest of the backsheet material” (id.). The Specification states that the color or tint of the strip can be “an indication of the type, size, absorption capacity or the like of the article” (id.). Claims 1-5, 7-9, and 11-27 are on appeal. Claim 1 is illustrative and reads as follows (emphasis added): 1. A method of marking an absorbent article, the absorbent article comprising a liquid pervious topsheet, a liquid impervious backsheet, and an absorbent body enclosed therebetween, the method comprising: providing at least one strip on the backsheet, the strip having a width of between 1 and 6 cm, wherein a color or tint of the strip is different from the rest of the backsheet and wherein the color or tint of the strip is selected so as to be an indication of product size or product absorption capacity of the absorbent article; and arranging a wetness indicator on or adjacent the at least one strip on the inside of the liquid impervious backsheet so that the wetness indicator is visible through the backsheet and wherein the color or tint of the strip that is an indication of product size or product absorption capacity facilitates identification of the location of the wetness indicator. Claim 15, the only other independent claim, is directed to a method that includes, among other steps, “providing an absorbent article comprising . . . a strip part . . . having a different color than the remaining part of the Appeal 2011-011577 Application 11/839,589 3 backsheet” and “identifying the size or absorption capacity of the article by the color of the strip.” The Examiner has rejected claims 1-5, 7-9, 11-23, 25, and 27 under 35 U.S.C. § 102(e) as anticipated by Cammarota2 (Answer 3). The Examiner has rejected claims 24 and 26 under 35 U.S.C. § 103(a) as obvious based on Cammarota (Answer 5). The same issue is dispositive with respect to both rejections. The Examiner finds that Cammarota discloses a method meeting all of the claim limitations, including a strip colored “so as to be an indication of product size or product absorption capacity” (claim 1), reasoning that the “presence of the colored graphics located on the strip part 30 indicated that the diaper is a wetness-indicating diaper, and since the indicia show saturation of the absorbent body, therefore the color of the strip part 30 is an indicia of the absorption capacity of the diaper” (Answer 3-4). That is, it is “the Examiner’s position that the wetness indicators 66 of Cammarota provide an indication that the article has absorbed fluids, and therefore indicate the absorption capacity of the article (i.e. the capacity of the article to absorb fluids)” (id. at 6). Appellant argues that “[t]here is no disclosure in Cammarota that the color or tint of any of the graphics, particularly the star graphics associated with a wetness indicator, provides any indication of product size or product absorption capacity of the absorbent article” (Appeal Br. 7). Appellant also argues that “since the claimed invention is already directed to an article that is capable of absorbing liquid, the Examiner’s construction renders the 2 Cammarota et al., U.S. 6,307,119 B1, Oct. 23, 2001. Appeal 2011-011577 Application 11/839,589 4 indication meaningless” (id. at 9). Appellant argues that, when read in light of the Specification, an “indication of product absorption capacity” would be interpreted to mean “that the indicia would effect a difference in the degree of absorbent capacity; not a construction of a binary situation of absorbent or not absorbent” (id. at 10). We agree with Appellant that the Examiner has not shown that Cammarota discloses a product that includes a colored strip that indicates product absorption capacity, as that phrase would be interpreted in light of the Specification. The Specification states that “the color, tint or other appearance of the strip 10, may be an indicator of the product type, size, absorption capacity or the like. . . . By this it is easier for the nurse to find the correct type of product in the case where the articles have been taken out of their packages and placed on a shelf or the like in a storage space in a nursing home or the like.” (Spec. 6.) Thus, the Specification makes clear that the “absorption capacity” recited in the claims, like product type or size, is an indicator that enables a nurse to identify which absorbent article is appropriate for a given patient. That is, the “absorption capacity” is an indicator of how much liquid the absorbent article can absorb, not – as the Examiner interprets it – simply an indicator that the article is absorbent. The Examiner has not pointed to any element of Cammarota’s absorbent article that functions to indicate product size or product absorption capacity, as required by claims 1 and 15. The rejection of claims 1-5, 7-9, 11-23, 25, and 27 as anticipated by Cammarota is therefore reversed. Appeal 2011-011577 Application 11/839,589 5 The rejection of claims 24 and 26 as obvious based on Cammarota relies on the Examiner’s finding that Cammarota discloses all of the limitations of claims 1 and 15 (Answer 5), and is therefore reversed for the reason discussed above. SUMMARY We reverse both of the rejections on appeal. REVERSED lp Copy with citationCopy as parenthetical citation