Ex Parte Collins et al

Board of Patent Appeals and Interferences

Jul 27, 2012

11799356 (B.P.A.I. Jul. 27, 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.
11/799,356 04/30/2007 Meghan Elizabeth Collins 64124152US01 4534
23556 7590 07/30/2012
KIMBERLY-CLARK WORLDWIDE, INC.
Tara Pohlkotte
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
MARCETICH, ADAMM
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
07/30/2012 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 ELIZABETH COLLINS,
RICHARD DICKERSON MOSBACHER, ANDREW MARK LONG,
DAROLD DEAN TIPPEY, SHIRLEE ANN WEBER,
and JESSICA SARA VAN HANDEL
__________

Appeal 2011-006230
Application 11/799,356
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(a) from the final rejection of
claims 1-20 and 22, directed to an absorbent article with a leakage warning
element. Claims 1-20 stand rejected as lacking written descriptive support,
and claim 22 stands rejected as anticipated. We have jurisdiction under
35 U.S.C. § 6(b).
Appeal 2011-006230
Application 11/799,356

2
STATEMENT OF THE CASE
Claims 1 and 22 are representative of the subject matter on appeal:
1. An absorbent article for preventing leakage, the article
comprising:
an absorbent assembly having an absorbent assembly perimeter; and
a leakage warning element disposed within the absorbent assembly
and only adjacent a portion of the perimeter, wherein the leakage warning
element is adapted to provide a physical sensation indicating a fullness level
of the absorbent assembly.
22. An absorbent article for providing a wearer with a warning of
potential leakage, the article comprising:
an absorbent assembly in fluid contact with a transport member; and
a leakage warning element in fluid contact with the transport member
such that the absorbent assembly is in fluid contact with the leakage warning
element via the transport member, wherein the leakage warning element is
adapted to impart a physical sensation to the wearer.
The claims stand rejected as follows:
claims 1-20 under 35 U.S.C. § 112, first paragraph, as failing to
comply with the written description requirement;1 and
claim 22 under 35 U.S.C. § 102(b) as anticipated by Underhill (US
6,576,810, June 10, 2003), which incorporates Van Gompel (US 4,940,464,
July 10, 1990) by reference.
We reverse.

1 Three anticipation rejections and one obviousness rejection set forth in the
Final Rejection of March 11, 2010 have been withdrawn (Ans. 3) and this
new ground of rejection under 35 U.S.C. § 112, first paragraph, has been
entered in the Answer.
Appeal 2011-006230
Application 11/799,356

3
WRITTEN DESCRIPTION
Claims 1-20, directed to an absorbent article with an absorbent area,
and a leakage warning element disposed “only adjacent” to the perimeter of
the absorbent area, stand rejected as lacking written descriptive support.
The Examiner finds that the Specification “describes a leakage
warning element disposed adjacent a portion of the perimeter . . . but does
not define the limitation of ‘only adjacent.’” (Ans. 4-5.) The Examiner notes
that the Specification “describes a warning element adjacent a perimeter that
may be positioned completely or partially along a perimeter” (id. at 5), but
finds that “this example does not exclude a warning element also in contact
with other portions of the absorbent assembly” (id.).
However, the Specification describes an embodiment in which
leakage warning element(s) “may be positioned completely or partially
along the entire absorbent assembly perimeter” (Spec. ¶ 65). While it is true
that this does not preclude additional warning elements located elsewhere on
the absorbent article, the issue here is whether the Specification reasonably
conveys the concept of an absorbent article with warning elements located
only, i.e., exclusively, adjacent the perimeter of the absorbent area of the
article, as claimed.2 We find that it does.
Accordingly, we reverse the Examiner’s rejection of claims 1-20
under 35 U.S.C. § 112, first paragraph, as lacking adequate written
descriptive support in the Specification as filed.

2 See Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563-64 (Fed. Cir.
1991) (One purpose of the written description requirement is to ensure that
the Specification conveys “with reasonable clarity” that applicant was in
possession of whatever is now claimed, as of the filing date sought).

Appeal 2011-006230
Application 11/799,356

4
ANTICIPATION
Claim 22 is directed to an absorbent article with an absorbent
assembly in fluid contact with a transport member and a leakage warning
element in fluid contact with the transport member “such that the absorbent
assembly is in fluid contact with the leakage warning element via the
transport member” (emphasis added). As explained in the Specification, the
transport member allows urine to be “transported from the absorbent
assembly . . . to the leakage warning elements” (Spec. 15: 31-32).
The Examiner finds that Underhill discloses “an absorbent article for
providing a wearer with a warning of potential leakage” (Ans. 5) comprising
an absorbent assembly in fluid contact with a transport member and a
leakage warning element in fluid contact with the transport member (id. at 5-
6). “Regarding the transport member,” the Examiner finds that “Underhill
incorporates Van Gompel . . . [and] Van Gompel discloses an absorbent
assembly having multiple layers” and a cover that “transports liquid to [an]
absorbent medium” in the absorbent assembly (id. at 6).
Appellants contend that “Underhill describes a toilet training article
containing an effervescent agent designed to notify its wearer immediately
upon first contact with urine” (Reply Br. 6), wherein the effervescent agent
is located on or in the absorbent core layer, i.e., “in direct fluid contact with
an absorbent assembly” (id.). Appellants contend that Van Gompel “adds a
cover . . . over an absorbent medium” (id.), but “[t]he cover (transport
medium) merely allows liquid to pass through to both the absorbent core
layer and the effervescent agent” (id. at 7). Appellants contend “there is no
transport member between the absorbent medium . . . and the effervescent
agent . . . via which the two can be in fluid communication” (id.).
Appeal 2011-006230
Application 11/799,356

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Appellants and the Examiner apparently agree that Underhill, with the
incorporation of Van Gompel, discloses an absorbent article with a cover
that allows urine to pass through and contact the absorbent assembly and the
effervescent agent, which provides a warning to the wearer. However, we
agree with Appellants that the claim requires a transport element capable of
transporting liquid from the absorbent assembly to the leakage warning
element (Reply Br. 7; see also Spec. 15: 31-32). The Examiner has not
established that either reference discloses a transport element having this
capability. Thus, we agree with Appellants that the Examiner has not
established that Underhill (with or without Van Gompel) discloses an
absorbent assembly in fluid contact with a leakage warning element via a
transport member, as required by claim 22.
SUMMARY
The rejection of claims 1-20 under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement is reversed.
The rejection of claim 22 under 35 U.S.C. § 102(b) as anticipated by
Underhill is reversed.

REVERSED

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