10462166 (B.P.A.I. May. 30, 2012)

Ex Parte Olson et al

Board of Patent Appeals and InterferencesMay 30, 2012

10462166 (B.P.A.I. May. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte CHRISTOPHER P. OLSON, SHIRLEE ANN WEBER, LAWRENCE HOWELL SAWYER, LEI HUANG, CHERYL A. PERKINS, JAEHO KIM, JEFFREY E. FISH, and YANBIN HUANG ____________________ Appeal 2010-005188 Application 10/462,166 Technology Center 3700 ____________________ Before: LINDA E. HORNER, EDWARD A. BROWN, and CHARLES N. GREENHUT, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-005188 Application 10/462,166 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1, 3-9 and 11-581. App. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. The claims are directed to a personal wear article with wetness indicator. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An article for personal wear having a longitudinal axis and a lateral axis, the article being capable of alerting a wearer to the wearer’s release of liquid body exudates, said article comprising: an absorbent structure adapted to absorb said liquid body exudates, said absorbent structure having an absorbent capacity gradient along at least a portion thereof; and a wetness indicator adapted to receive said liquid body exudates, said wetness indicator being responsive to the liquid body exudates to apply a tactile sensation against the wearer's skin, said wetness indicator being positioned relative to said portion of the absorbent structure having an absorbent capacity gradient such that the absorbent capacity of the absorbent structure increases as the absorbent structure extends generally from the position of the wetness indicator in a direction generally longitudinally away from the position of the wetness indicator. 1 The Examiner has withdrawn the rejection of claims 3, 7, 26 and 27. Ans. 2-3. Appeal 2010-005188 Application 10/462,166 3 REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Bletzinger Brunner US 3,375,827 WO 96/19172 Apr. 2, 1968 Jun. 27, 1996 REJECTIONS Claims 1, 4-6, 8, 9, 11-25, and 28-58 are rejected under 35 U.S.C. 103(a) as being unpatentable over Brunner and Bletzinger. Ans. 4. OPINION The claimed invention is directed to a diaper with a wetness indicator 45. The absorbent capacity of the absorbent structure may “increase[] . . . away from the position of the wetness indicator” (see shading in Fig. 4). The wetness indicator may provide a tactile sensation when wet by either stiffening/swelling, changing temperature, or both. Claims 1, 23, 34, 45 and 55 are in independent form and all claims are rejected based on Brunner, which teaches a diaper with a temperature changing wetness indicator, and Bletzinger, allegedly teaching an absorbent capacity gradient. However, the Examiner does not explain why Bletzinger is relied on for any claims other than claim 1 and those depending therefrom. See Ans. 5. Regarding claim 1, the Examiner improperly relies on a finding that Bletzinger, by disclosing increased density and increased capillary action in flow control element 25, thereby discloses increased “absorbent capacity” longitudinally outwardly (from the center where the wetness indicator would be if combined with Brunner). See Ans. 5, 10. Appellants correctly point out Appeal 2010-005188 Application 10/462,166 4 that there is nothing in the record to establish that increased density and flow rate necessarily result in decreased absorbent capacity in Bletzinger. App. Br. 8-12. Further, Appellants also point out that the multiple layers 13, 25 near the center would suggest increased, not decreased, absorbent capacity near the longitudinal center in Bletzinger. App. Br. 13. Accordingly, we must reverse the rejection of claim 1, along with those claims depending therefrom. Regarding independent claims 34, 45, and 55, the Examiner has not established how Brunner’s wetness indicator either stiffens (claims 34, 45), or a portion of the article swells or stiffens to urge that portion into contact with a wearer (claim 55). See Ans. 7-8, 13-14. Appellants correctly point out that just because the individual temperature sensitive particles 70 of Brunner may swell, since they are contained in layer 72 and swell in solution (Brunner 10:3-5) to effectuate a temperature change, they are not necessarily capable of urging anything into contact with a wearer. App. Br. 22-27. Appellants also correctly point out there is insufficient evidence regarding containment layer 72 to determine if it stiffens and the Examiner does not appear to address this limitation. Id. Accordingly we must reverse the Examiner’s rejections of claims 34, 45 and 55, along with those claims depending therefrom. We summarily affirm the Examiner’s rejection of claims 23-25 and 28-33 since no arguments are presented by Appellants to apprise us of any error in the Examiner’s rejection of these claims. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (On appeal, the Board “reviews the obviousness rejection for error based upon the issues identified by appellant, and in light of the arguments and evidence produced thereon.”) Appeal 2010-005188 Application 10/462,166 5 DECISION The Examiner’s rejection of claims 1, 4-6, 8, 9, 11-22, and 34-58 is reversed. The Examiner’s rejection of claims 23-25, and 28-33 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART Klh