10827088 (B.P.A.I. May. 16, 2012)

Ex Parte Liu

Board of Patent Appeals and InterferencesMay 16, 2012

10827088 (B.P.A.I. May. 16, 2012)

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. 10/827,088 04/19/2004 Kuang-Kai Liu 9606 1872 27752 7590 05/16/2012 THE PROCTER & GAMBLE COMPANY Global Legal Department - IP Sycamore Building - 4th Floor 299 East Sixth Street CINCINNATI, OH 45202 EXAMINER HANRAHAN, BENEDICT L ART UNIT PAPER NUMBER 3761 MAIL DATE DELIVERY MODE 05/16/2012 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 KUANG-KAI LIU __________ Appeal 2011-001093 Application 10/827,088 Technology Center 3700 __________ Before ERIC GRIMES, LORA M. GREEN, and ERICA A. FRANKLIN, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to a disposable absorbent article. The Examiner has rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. STATEMENT OF THE CASE Claims 1-16 are on appeal. Claim 1 is representative and reads as follows: 1. A disposable absorbent article comprising: a) a liquid pervious topsheet; Appeal 2011-001093 Application 10/827,088 2 b) a liquid impervious backsheet that is at least partially joined to the topsheet; c) an absorbent core disposed at least partially between the topsheet and the backsheet; and d) a wetness indicator printed onto a surface of said backsheet; the wetness indicator comprising a graphic that further comprises at least one hydrolyzable color composition and a varnish coating disposed adjacent to said hydrolyzable color composition; said graphic being invisible to the unaided eye; wherein upon wetting, said hydrolyzable color composition undergoes a hydrolytic reaction resulting in said invisible graphic becoming visible to the unaided eye. Claims 11 and 14, the only other independent claims, also require a wetness indicator that comprises a hydrolyzable color composition that undergoes a hydrolytic reaction that results in it becoming visible to the unaided eye (see Appeal Br. 14-15 (Claims Appendix)). All of the claims stand rejected under 35 U.S.C. § 103(a) based on a combination of references that includes Castello,1 Raykovitz,2 and Towsend,3 either by themselves (Answer 4) or combined with an additional reference (Answer 5-9). The same issue is dispositive with respect to each of the rejections on appeal. The Examiner finds that Castello discloses a diaper comprising a color wetness indicator but does not disclose that the wetness indicator is hydrolyzable and undergoes a hydrolytic reaction upon wetting (Answer 4). The Examiner finds that Raykovitz discloses a color indicator that is substantially invisible when dry but becomes a vivid color when wet (id.), 1 Castello, U.S. Patent 4,931,051, June 5, 1990 2 Raykovitz, U.S. Patent 5,342,861, Aug. 30, 1994 3 Towsend, U.S. Patent, 4,287,153, Sept. 1, 1981 Appeal 2011-001093 Application 10/827,088 3 and Towsend discloses “an absorbent article (1) having a water indicator graphics (2) made of a latent color pigment material that undergoes a hydrolytic reaction in response to urine or saline water such that the graphic becomes visible” (id.). The Examiner concludes that it would have been obvious “to substitute the graphics compositions of Towsend and Raykovitz for use as the wetness indicator material in the absorbent articles of Castello” (id. at 5). Appellant argues that none of these references discloses a wetness indicator that changes color as a result of hydrolysis, because the wetness indicating agents of Castello and Raykovitz change color as a result of hydration (Appeal Br. 5), and “Towsend teaches an ion exchange reaction” (id. at 6). Appellant argues that, in contrast to these references, the claims “require hydrolysis, i.e. where water molecules are reacted with the compound of interest and water is conserved in the reaction, i.e. it becomes part of the reaction product, not where ions are being exchanged between the indicator and the bodily fluid” (id.). Appellant also argues that none of the additional references applied by the Examiner remedy this deficiency (id. at 7-11). We agree with Appellant that the Examiner has not provided adequate evidence to show that Castello, Raykovitz, and Towsend would have made obvious a wetness indicator required by the claims. Each of the independent claims requires a wetness indicator that comprises a hydrolyzable color composition that undergoes a hydrolytic reaction upon wetting, causing a printed graphic to become visible to the unaided eye. Appeal 2011-001093 Application 10/827,088 4 Hydrolysis is a “chemical reaction in which water reacts with another substance to form two or more new substances. This involves ionization of the water molecule as well as splitting of the compound hydrolyzed, e.g., CH3COOC2H5 + H2O → CH3COOH + C2H5OH.” (Hawley’s Condensed Chem. Dictionary, 14th ed., cited in the PTO-892 entered on Oct. 4, 2007). Thus, hydrolysis requires reaction of water with another substance to split the compound hydrolyzed into two or more new substances. The Examiner argues that Towsend provides basically a definition of how hydrolysis works when describing the reaction (Col 4, lines 24-28). The aqueous body excretions contain water and react with the insoluble polymeric ion exchange material to release either hydrogen ions (a cation exchanger) or hydroxyl ions (an anion exchanger). The water molecule has been split into hydrogen ions and hydroxyl ions, which is hydrolysis. The released ion contacts the insoluble polymeric acid-base indicator to undergo a color change. (Answer 10-11.) We disagree. The cited portion of Towsend describes an ion exchange in which “ions in the aqueous bodily excretions react with the insoluble polymeric ion exchange material to cause a release of either hydrogen ions (a cation exchanger) or hydroxyl ions (an anion exchanger)” (Towsend, col. 4, ll. 24-28). Displacement of a hydrogen ion or a hydroxyl ion from an ion exchanger by a different ion in the bodily fluid is not equivalent to splitting a compound into two or more new compounds by reaction with water. The Examiner has not provided adequate evidence to support a conclusion that those skilled in the art would interpret “hydrolysis” as encompassing the ion exchange described by Towsend. Appeal 2011-001093 Application 10/827,088 5 The color change mechanisms described by Castello and Raykovitz also are not based on a hydrolytic reaction. See Castello, col. 4, ll. 22-56; Raykovitz, col. 3, ll. 28-52. Although the Examiner argues that Castello “show[s] a reaction for the change of color that is known to concurrently have hydrolysis, as shown as reaction 1 in Column 4, lines 23-24” (Answer 9-10), the reaction shown is that of CuSO4 + H2O → CuSO4.5H2O. This reaction is not one that splits a compound into two or more other compounds by reaction with water, and therefore is not hydrolysis. SUMMARY We reverse all of the rejections on appeal. REVERSED lp