Ex Parte Olson

Board of Patent Appeals and Interferences

Mar 27, 2012

11246414 (B.P.A.I. Mar. 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.
11/246,414 10/07/2005 Christopher P. Olson 21,699A 4940
23556 7590 03/27/2012
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
03/27/2012 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 CHRISTOPHER P. OLSON
__________

Appeal 2010-012166
Application 11/246,414
Technology Center 3700
__________

Before DEMETRA J. MILLS, ERIC GRIMES, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an
absorbent article comprising a temperature change member. The Examiner
rejected the claims as anticipated. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm-in-part.

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Statement of the Case
The Specification teaches that “the invention relates to an absorbent
article such as training pants that provides the wearer with a noticeable
temperature change sensation upon urination” (Spec. 1 ¶ 0001).
The Claims
Claims 1-32 are on appeal. Claim 1, 3, and 19 are representative and
read as follows:
1. An absorbent article defining an article first side
edge and an article second side edge opposite said article
first side edge and a pair of end edges, said absorbent
article comprising:
A liquid impermeable outercover;
An absorbent body disposed on said outercover;
and
A temperature change member disposed with said
absorbent body, said temperature change member
comprising a temperature change member first surface
and a temperature change member second surface
opposite said temperature change member first surface,
wherein said temperature change first surface is in an
overlaid relationship with itself to define a first folded
region and an unfolded region, wherein no portion of the
temperature change member is in an overlaid relationship
with the unfolded region, wherein temperature change
material is disposed between said first surface and said
second surface in the unfolded region, and wherein said
temperature change member provides said article with a
temperature change of at least 5 degrees C, as determined
by the temperature change test described herein.

3. The absorbent article of claim 1 wherein said
temperature change first surface is in a direct facing
relationship with itself to provide said first folded region.

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19. The absorbent article of claim 1 wherein said
temperature change member further comprises a coform
matrix of fibers disposed between said temperature
change member first surface and said temperature change
member second surface, said coform matrix of fibers
comprising polymer fibers and absorbent fibers, and
wherein said temperature change material is intermixed
within said coform matrix of fibers.

The issues

A. The Examiner rejected claims 1-23 and 26-32 under 35 U.S.C. §
102(a) as anticipated by Roe1 (Ans. 3-4).
B. The Examiner rejected claims 24 and 25 under 35 U.S.C. § 103(a) as
obvious over Roe (Ans. 4).
A. 35 U.S.C. § 102(a) over Roe
The Examiner finds that Roe “discloses an absorbent article
comprising a liquid impermeable outercover (26), an absorbent body (28)
disposed on the outercover and a temperature change member (50) disposed
with the absorbent body” (Ans. 3). The Examiner finds that Roe teaches that
the “temperature change member has a first surface and a second surface
opposite the first surface and member is in an overlaid direct facing
relationship with itself proximate the first side edge to define a first C folded
region and an unfolded region wherein no portion of the temperature change
member is in an overlaid relationship with the unfolded region” (Ans. 3).
Appellant contends that the “Roe does not disclose, teach, or suggest a
temperature change member having a temperature change first surface in an

1 Roe et al., US 2002/0169427 A1, published Nov. 14, 2002.
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overlaid relationship with itself to define a first folded region and an
unfolded region, and wherein temperature change material is disposed
between said first surface and said second surface in the unfolded region”
(App. Br. 5).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner’s conclusion that Roe anticipates the claims?
Findings of Fact
1. Figure 9a of Roe is reproduced below:

“FIG. 9a is a plan view of a diaper having a temperature change element
disposed on the body-facing surface wherein the temperature change
element comprises a permeable layer partially enclosed by an impermeable
layer” (Roe 2 ¶ 0024).
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2. Figure 9b of Roe is reproduced below:

“FIG. 9a [sic b] is a cross sectional view of the diaper illustrated in FIG.
9a” (Roe 2 ¶ 0025).
3. Roe teaches “an absorbent article, is provided with a
temperature change element producing a temperature change that is sensed
by the skin of the wearer, signaling the wearer that a discharge of bodily
exudates, such as urine, has occurred” (Roe 1 ¶ 0008).
4. Roe teaches that the “diaper 20 preferably comprises a liquid
pervious topsheet 24, a liquid impervious backsheet 26, and an absorbent
core 28 encased between the topsheet 24 and the backsheet 26” (Roe 3 ¶
0043).
5. Roe teaches that:
In another embodiment shown in FIGS. 9a and 9b, the
temperature change element 50 includes a permeable layer
52 the majority of which is enclosed by an impermeable
layer 54. For this embodiment, the impermeable layer
54 partially wraps around the permeable layer 52 such that
the longitudinal edges 53, 55 of the impermeable layer 54
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stop short of meeting, leaving a center portion 184 of the
permeable layer exposed. The temperature change element
50 is preferably oriented such that the exposed center
portion 84 is on the body-facing surface and aligned with the
wearer[’]s urethra. For this embodiment, the temperature
change substance 56 is preferably disposed on the permeable
layer away from the exposed center portion 84, preferably in
two parallel regions covered by the longitudinal edges 53,
55 of the impermeable layer 54. During insults of urine, the
exposed center portion 84 of the permeable layer 54 may
wick the urine toward the temperature change substance 56
thereby wetting the substance and providing a signal to the
wearer.

(Roe 6 ¶ 0071).
6. The Specification teaches that the “temperature change material
80 is responsive to contact with an aqueous solution such as urine to either
absorb or release heat” (Spec. 35 ¶ 00102).
Principles of Law
Anticipation under 35 U.S.C. § 102(a) requires that “each and every
element as set forth in the claim is found, either expressly or inherently
described, in a single prior art reference.” Verdegaal Bros., Inc. v. Union Oil
Co., 814 F.2d 628, 631 (Fed. Cir. 1987).
Analysis
Claim 1
Roe teaches “an absorbent article, is provided with a temperature
change element producing a temperature change that is sensed by the skin of
the wearer, signaling the wearer that a discharge of bodily exudates, such as
urine, has occurred” (Roe 1 ¶ 0008; FF 3). Roe teaches that the “diaper 20
preferably comprises a liquid pervious topsheet 24, a liquid impervious
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backsheet 26, and an absorbent core 28 encased between the topsheet 24 and
the backsheet 26” (Roe ¶ 0043; FF 4).
Roe also teaches that a temperature change member is in an overlaid
relationship with itself to define first and second folded regions and an
unfolded region which is disposed between the first and second folded
region, where the unfolded region is not covered by the temperature change
member (FF 2, 5).
However, claim 1 includes the further requirement that the
“temperature change material is disposed between said first surface and said
second surface in the unfolded region” (Claim 1). The Specification teaches
that the “temperature change material 80 is responsive to contact with an
aqueous solution such as urine to either absorb or release heat” (Spec. 35 ¶
00102; FF 6). In Roe, the temperature change material responsive to the
aqueous solution is element 56 (FF 5) where element 56 is not located in the
unfolded center region, but is rather located in the folded region as shown in
Figure 9b (FF 2).
We are therefore not persuaded by the Examiner’s contention that
“layer or first surface 54 of the temperature change member is in an overlaid
relationship with itself to define a first folded region (near element 55) and
an unfolded region (near element 52) as claimed” (Ans. 4-5). It is element
56 in Roe which must be found in the unfolded region to satisfy the
requirement of the claim, and element 56 is not located in the unfolded
center region (FF 2).

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Claim 28
The Examiner finds that “[i]f the temperature change member is in the
article as the absorbent body is, then the member may be considered to be
disposed with the absorbent” (Ans. 6).
Appellant contends that “Roe does not disclose, teach, or suggest a
temperature change member of this description disposed with an absorbent
body” (App. Br. 6).
We find that the Examiner has the better position. Claim 28 lacks the
requirement found in claim 1 regarding the location of the temperature
change material in the unfolded region. Claim 28 simply requires an
unfolded region as well as the first and second folded regions, which are
expressly taught by Roe in figure 9b (FF 2).
Claim 32
The Examiner finds that “an additional layer is included in the
temperature change element. As shown in figure 9b, each end of the
temperature change member is folded thereby providing first and second
folds of a plurality of layers” (Ans. 6).
Appellant contends that “Roe does not disclose, teach, or suggest a
temperature change member folded into first and second pluralities of
layers” (App. Br. 6).
We find that the Examiner has the better position. Claim 32 is the
broadest independent claim currently pending and simply requires that the
temperature change member is folded into two pluralities of layers which do
not overlie each other (see Claim 32). Roe teaches that the temperature
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change layer is folded at each end into two separate layers, which are a
“plurality”, in Figure 9b which do not overlie each other (FF 2).
Conclusion of Law
The evidence of record does not support the Examiner’s conclusion
that Roe anticipates claim 1.
The evidence of record supports the Examiner’s conclusion that Roe
anticipates claim 28 and 32.
B. 35 U.S.C. § 103(a) over Roe
The Examiner relies upon the anticipation rejection over Roe to
address the limitation in Claim 1 of “wherein temperature change material is
disposed between said first surface and said second surface in the unfolded
region.”
Having reversed the anticipation rejection for a failure to teach that
limitation, we also reverse the obviousness rejection over claims 24 and 25
since the Examiner does not identify any teaching or suggestion in Roe to
address this limitation.
SUMMARY
In summary, we reverse the rejection of claims 1-23, 26, and 27 under
35 U.S.C. § 102(a) as anticipated by Roe.
We affirm the rejection of claims 28 and 32 under 35 U.S.C. § 102(a)
as anticipated by Roe. Pursuant to 37 C.F.R. § 41.37(c)(1), we also affirm
the rejection of claims 29-31 as these claims were not argued separately.
We reverse the rejection of claims 24 and 25 under 35 U.S.C. § 103(a)
as obvious over Roe.

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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

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