Ex Parte Gakhar et al

Patent Trial and Appeal Board

Dec 28, 2015

12636888 (P.T.A.B. Dec. 28, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
12/636,888 12/14/2009 Sudhanshu Gakhar 64496387US03 2242
23556 7590 12/29/2015
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
TANG, SON M
ART UNIT PAPER NUMBER
2685
MAIL DATE DELIVERY MODE
12/29/2015 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 PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte SUDHANSHU GAKHAR,
SRIDHAR RANGANATHAN,
THOMAS MICHAEL ALES III,
and RANDALL GEORGE SARKIS
____________________

Appeal 2014-002561
Application 12/636,888
Technology Center 2600
____________________

Before CARLA M. KRIVAK, MICHAEL J. STRAUSS, and
MICHAEL M. BARRY, Administrative Patent Judges.

STRAUSS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1–22. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
The claims are directed to using a paired infrared (IR)
generator/detector to sense and indicate the presence of a body exudate in an
absorbent article, e.g., diaper. Abstract, Spec. 1. Claim 1, reproduced
below, is representative of the claimed subject matter:
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1. A signaling device for sensing and indicating the presence of
a body exudate in an absorbent article, the device comprising:
a housing; and
a paired IR generator/detector disposed within the
housing, the paired IR generator/detector adapted to sense a
change in infrared light reflectance due to the presence of the
body exudate in the absorbent article, the paired IR
generator/detector including an infrared-generating light-
emitting diode and an infrared-detecting phototransistor.

REFERENCES
The prior art references relied upon by the Examiner in rejecting the
claims on appeal is:
Johnson US 5,469,145 Nov. 21, 1995
Latarius US 6,276,202 B1 Aug. 21, 2001
Panopoulos US 2004/0220538 A1 Nov. 4, 2004
Lee US 7,731,665 B2 June 8, 2010 (filed Sept. 5, 2006)

Yoshida JP2002-153497 A May 28, 2002

REJECTIONS1
The Examiner made the following rejections:
Claims 1, 2, and 5–22 stand provisionally rejected on the ground of
nonstatutory obviousness-type double patenting over claims 1, 2, 4–12, and
15–22 of copending Application No. 12/648,645 in view of Yoshida. Final
Act. 2–3.

1 Appellants argue the rejection of independent claim 1, repeating those
arguments in connection with the rejection of independent claims 15 and 19.
Br. 3–6. Separate patentability is not argued for dependent claims 2–14, 16–
18, and 20–22. Id. at 3–7. Therefore, we decide the appeal of claims 1–22
based on claim 1 alone. See 37 C.F.R. § 41.37(c)(1)(iv).
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Claims 1–12 and 15–20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Yoshida, Lee, and Johnson. Final Act. 3–6.
Claims 13, 14, and 22 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Yoshida, Lee, Johnson, and Latarius. Final Act. 6–
7.
Claim 21 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yoshida, Lee, Johnson, and Panopoulos. Final Act. 7.

ISSUE ON APPEAL
Based on Appellants’ arguments in the Appeal Brief (Br. 3–7), the
dispositive issue on appeal is whether the Examiner erred in combining the
teachings of Yoshida and Lee in finding the combination teaches or suggests
the disputed paired IR generator/detector including an infrared-generating
light-emitting diode and an infrared-detecting phototransistor.

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We disagree with Appellants’
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken (Final Act. 2–4)
and (2) the reasons set forth by the Examiner in the Examiner’s Answer in
response to Appellants’ Appeal Brief (Ans. 2–4), and we concur with the
conclusions reached by the Examiner. We highlight the following for
emphasis.
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Provisional Double Patenting Rejection
We note Appellants have not presented any arguments challenging the
propriety or the substance of the rejection of claims 1, 2, and 5–20 under the
judicially created doctrine of obviousness-type double patenting. Thus, any
such arguments are deemed to be waived and we summarily sustain the
provisional double patenting rejection.
Rejections under 35 U.S.C. § 103(a)
Appellants contend Yoshida only discloses “‘collecting type’ IR
sensors which detect the increase in the infrared ray quantity at the time of
[defecation] and urination” and not “an IR generator with an infrared-
generating light-emitting diode as required by the claims.” Br. 4. Appellants
argue “there has been no suggestion or motivation provided, either in the
references themselves or in the knowledge generally available to one of
ordinary skill in the art, to modify Yoshida [according to the teachings of
Lee] or to combine reference teachings as proposed.” Id. According to
Appellants, one skilled in the art would not be motivated to combine Lee’s
teaching of a specific wavelength of infrared light “with the device of
Yoshida since it has not been shown that Yoshida teaches an IR generator
utilizing any wavelength.” Br. 5. Appellants conclude the rejection under
35 U.S.C. § 103(a) based on the combined teachings is improper. Id. The
Examiner finds, rather than disclosing there is no infrared light generator,
Yoshida simply omits details of the IR sensor. Ans. 3. The Examiner then
relies on Lee for teaching details of “a known IR sensor . . . comprising an
infrared-ray transmission [element] (infrared light emitting diode) and an
infrared ray receiving [element] (infrared photodiode).” Id. The Examiner
further finds one skilled in the art would include Lee’s IR light-emitting
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diode and IR detecting phototransistor to supply and detect IR light to sense
a change in IR levels caused by insult to the diaper. Final Act. 4.
Appellants’ argument is unpersuasive of Examiner error. Appellants
provide insufficient evidence or technical reasoning to persuade us that
Yoshida’s lack of explicit disclosure of an IR generator (e.g., infrared-
generating light-emitting diode) is an intentional omission of either an
unnecessary or unwanted component versus, as found by the Examiner,
simply a result of a failure to provide details of the detecting sensor.
Furthermore, we disagree the combination of Yoshida and Lee is improper
because, according to Appellants, there is no suggestion or motivation to
modify Yoshida according to Lee. See Br. 4. We note, in view of KSR Int’l
Co. v. Teleflex, Inc., 550 U.S. 398 (2007), motivation is not a rigid
requirement as there are other indicia to consider, including:
some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness . . . . [H]owever,
the 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.
KSR, 550 U.S. at 418 (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006) (internal quotation marks omitted)).
We agree with the Examiner’s reasoning and conclude the factual
underpinning provides an adequate basis for the combination of Yoshida and
Lee. In particular, the Examiner relies on Lee because it provides details,
otherwise lacking in Yoshida, of IR sensors that include both an infrared
light generator and an infrared detecting phototransistor. Ans. 3. Appellants
fail to provide sufficient evidence or argument that the combination, i.e., the
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use of Lee’s IR sensor, yields anything other than predictable results. See
KSR, 550 U.S. at 416 (“The combination of familiar elements according to
known methods is likely to be obvious when it does no more than yield
predictable results.”). Furthermore, we note in passing, even if Yoshida’s IR
sensor were able to function without an infrared light generator, Appellants
have failed to provide persuasive evidence or technical argument explaining
why substituting Lee’s IR sensor including an infrared light emitting diode
and photodiode is anything other than standard design choice. We are also
not persuaded combining the respective familiar elements of the cited
references in the manner proffered by the Examiner was “uniquely
challenging or difficult for one of ordinary skill in the art” (see Leapfrog
Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007)
(citing KSR, 550 U.S. at 418)). Therefore, we find the Examiner’s proffered
combination of familiar prior art elements according to their established
functions would have conveyed a reasonable expectation of success to a
person of ordinary skill at the time of the invention. We further find the
Examiner has articulated reasoning with rational underpinnings sufficient to
justify the legal conclusion of obviousness.
For the reasons discussed supra, Appellants’ arguments are
unpersuasive of Examiner error. Therefore, we sustain the rejection of
independent claim 1 and, for the same reasons, the rejection of independent
claims 15 and 19 under 35 U.S.C. § 103(a) together with the rejection of
dependent claims 2–14, 16–18, and 20–22, which are not separately argued.

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DECISION
The Examiner’s decision to reject claims 1–22 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)(1)(iv).

AFFIRMED

Msc