Ex Parte Olson et al

Board of Patent Appeals and Interferences

Mar 7, 2012

11508670 (B.P.A.I. Mar. 7, 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.
11/508,670 08/22/2006 Christopher P. Olson 64049987US01 4118
23556 7590 03/08/2012
KIMBERLY-CLARK WORLDWIDE, INC.
Tara Pohlkotte
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
STEPHENS, JACQUELINE F
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
03/08/2012 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 and ANDREW M. LONG
__________

Appeal 2010-011717
Application 11/508,670
Technology Center 3700
__________

Before JEFFREY N. FREDMAN, STEPHEN WALSH, and
ERICA A. FRANKLIN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a method
of predicting an incontinent event. The Examiner rejected the claims as
anticipated and obvious. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm-in-part and enter a New Grounds of Rejection.

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Statement of the Case
The Specification teaches “determining a change in the property of the
[method garment absorbent] wherein the change is indicative of an
incontinent event of the wearer. Further, the method includes predicting
conditions indicative of a subsequent incontinent event based on the change
in the property” (Spec. 3, ll. 6-8).
The Claims
Claims 1-24 are on appeal. Claim 1 and 11 are representative and
read as follows:
1. A method of predicting when an incontinent event
may happen, said method comprising:
electronically monitoring a property of an absorbent
article as the article is being worn by a wearer;
determining a change in the property of the article
wherein the change is indicative of an incontinent event of
the wearer; and
predicting conditions indicative of a subsequent
incontinent event based on the change in the property.

11. The method as set forth in claim 1 wherein the
predicting step comprises comparing a series of incontinent
events and conditions present at and before the incontinent
events, and determining patterns in the conditions present at
and before the incontinent events.

The issues

A. The Examiner rejected claims 1-3, 5, and 9 under 35 U.S.C. § 102(b)
as anticipated by Ter-Ovanesyan1 (Ans. 4-6).

1 Ter-Ovanesyan et al., US 6,372,951 B1, issued Apr. 16, 2002.
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B. The Examiner rejected claims 11-17 and 19-24 under 35 U.S.C. §
103(a) as obvious over Ter-Ovanesyan (Ans. 7).
C. The Examiner rejected claims 4 and 6 under 35 U.S.C. § 103(a) as
obvious over Ter-Ovanesyan and Friedman2 (Ans. 7-8).
D. The Examiner rejected claims 7 and 18 under 35 U.S.C. § 103(a) as
obvious over Ter-Ovanesyan and Roe3 (Ans. 9).
E. The Examiner rejected claims 8 and 10 under 35 U.S.C. § 103(a) as
obvious over Ter-Ovanesyan, Roe, and Nielsen4 (Ans. 9).
A. 35 U.S.C. § 102(b) over Ter-Ovanesyan
The Examiner finds that “Ovanesyan discloses a method of predicting
when an incontinent event may happen . . . comprising: electronically
monitoring (60) a property of an absorbent article (20) as the article (20) is
being worn by a wearer” (Ans. 4). The Examiner finds that Ter-Ovanesyan
teaches
determining a change in the property of the article (20)
wherein the change is indicative of an incontinent event of
the wearer. . . . Ovanesyan teaches a sensor that detects an
input external to the article and where Ovanesyan teaches an
actuator which responds to an incontinent event . . . which
reads [on] this step; and . . . predicting conditions indicative
of a subsequent incontinent event based on the change in the
property.

(Ans. 4-5).

2 Friedman et al., US 2002/0145526 A1, published Oct. 10, 2002.
3 Roe et al., US 6,399,853 B1, issued Jun. 4, 2002.
4 Wyn Y. Nielsen, US 6,246,330 B1, issued Jun. 12, 2001.
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Appellants contend that “[n]owhere does Ter-Ovanesyan disclose, nor
does the Examiner point to a disclosure, of determining a change in the
property of the article wherein the change is indicative of an incontinent
event, and using that change in a property to predict conditions indicative of
a subsequent incontinent event” (App. Br. 4-5).
Appellants contend that “despite Ter-Ovanesyan’s laundry list sensed
inputs, and other than in a couple examples, Ter-Ovanesyan does not enable
one skilled in the art to make much of what Ter-Ovanesyan intends to
disclose, much less enabling one skilled in the art to make the subject matter
of claim 1” (App. Br. 5).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner’s conclusion that Ter-Ovanesyan anticipates the
claims?
Findings of Fact
1. Ter-Ovanesyan teaches that the “diaper 20 may also comprise
one or more ‘proactive’ sensors’ 60. . . . that is capable of detecting or
monitoring changes or signals in or on the body of the wearer, in the article
or in the waste, i.e., inputs, that directly relate or, at a minimum, correlate to
the occurrence of an impending event related to the bodily waste” (Ter-
Ovanesyan, col. 11, ll. 48-54).
2. Ter-Ovanesyan teaches that:
Proactive sensors may respond to one or more specific
inputs. Examples of inputs that may be detected by a
proactive sensor of the present invention in order to predict.
an impending event include, but are not limited to, attitude,
pressure, motion, vibration, sound, ultrasonic waves,
electrical activity, contraction, tension, bloodflow, moisture,
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temperature, enzymes, bacteria, pH, conductivity, resistance,
capacitance, inductance or other chemical, biochemical,
biological, mechanical or electrical properties and/or
components of bodily wastes.

(Ter-Ovanesyan, col. 11, ll. 59-65).
3. Ter-Ovanesyan teaches that “an open loop responsive system
may include a sensor 60 that detects bodily waste or a component of that
bodily waste, and an actuator 70 that performs a responsive function in a
continuous or a discontinuous manner on something other than the input
detected by the sensor 60” (Ter-Ovanesyan, col. 26, ll. 16-23).
4. Ter-Ovanesyan teaches “the sensor 60 may measure the volume
of the rectum, bladder or colon and signal the wearer or caregiver when the
volume reaches a pre-defined threshold for the individual” (Ter-Ovanesyan,
col. 14, ll. 30-33).
5. Ter-Ovanesyan teaches that “[n]on-limiting examples of
threshold values for the bladder or rectum which may be relevant to
determining the next excretion include about 80% of daytime maximum
volume or the minimum observed micturition or defecation volume” (Ter-
Ovanesyan, col. 14, ll. 40-44).
6. Ter-Ovanesyan teaches that “a premicturition enuresis alarm for
individual’s having nighttime urinary incontinence may signal the wearer or
caregiver, for example, when the bladder reaches 80% of the maximum
observed daytime bladder volume” (Ter-Ovanesyan, col. 14, ll. 44-48).
7. Ter-Ovanesyan teaches that “the target or ‘trigger’ level of
muscle electrical activity increase or decrease that results in the signaling of
the wearer or caregiver or the application of an electrical stimulus may be
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varied or controlled by the wearer or caregiver based on differences between
individual wearers” (Ter-Ovanesyan, col. 29, ll. 1-5).
8. Ter-Ovanesyan teaches that the
sensor is adapted to detect electrical activity in the wearer’s
smooth colonic muscles, abdominal muscles, muscles
surrounding the wearer’s bladder or muscles surrounding the
wearer’s rectum which correlates to an impending
elimination of bodily waste and to provide a signal to the
wearer, a caregiver or an element of the article of the
impending event.

(Ter-Ovanesyan, col. 1, ll. 61-67).
9. Ter-Ovanesyan teaches that “[p]roactive sensors 60 in an article
may measure many different inputs in order to predict an event” (Ter-
Ovanesyan, col. 13, ll. 16-18).
Principles of Law
“A rejection for anticipation under section 102 requires that each and
every limitation of the claimed invention be disclosed in a single prior art
reference.” In re Paulsen, 30 F.3d 1475, 1478-79 (Fed. Cir. 1994).
Analysis
Claim 1
Ter-Ovanesyan teaches predicting an incontinent event, specifically
teaching that “[p]roactive sensors 60 in an article may measure many
different inputs in order to predict an event” (Ter-Ovanesyan, col. 13, ll. 16-
18; FF 9).
Ter-Ovanesyan teaches a step of using a sensor for electronically
“monitoring changes or signals in or on the body of the wearer, in the article
or in the waste, i.e., inputs, that directly relate or, at a minimum, correlate to
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the occurrence of an impending event related to the bodily waste” (Ter-
Ovanesyan, col. 11, ll. 48-54; FF 1).
Ter-Ovanesyan teaches a variety of different sensors (FF 2) including
“a sensor 60 that detects bodily waste or a component of that bodily waste”
(Ter-Ovanesyan, col. 26, ll. 16-23; FF 3).
Ter-Ovanesyan teaches predicting an incontinent event where “the
sensor 60 may measure the volume of the rectum, bladder or colon and
signal the wearer or caregiver when the volume reaches a pre-defined
threshold for the individual” (Ter-Ovanesyan, col. 14, ll. 30-33; FF 4). Ter-
Ovanesyan then teaches that “[n]on-limiting examples of threshold values
for the bladder or rectum which may be relevant to determining the next
excretion include about 80% of daytime maximum volume or the minimum
observed micturition or defecation volume” (Ter-Ovanesyan, col. 14, ll. 40-
44; FF 5). Ter-Ovanesyan teaches that “a premicturition enuresis alarm for
individual’s having nighttime urinary incontinence may signal the wearer or
caregiver, for example, when the bladder reaches 80% of the maximum
observed daytime bladder volume” (Ter-Ovanesyan, col. 14, ll. 44-48; FF 6).
Thus, Ter-Ovanesyan teaches using a sensor to predict an incontinent
event based on changes in measured properties (FF 4-6).
Appellants contend that “[n]owhere does Ter-Ovanesyan disclose, nor
does the Examiner point to a disclosure, of determining a change in the
property of the article wherein the change is indicative of an incontinent
event, and using that change in a property to predict conditions indicative of
a subsequent incontinent event” (App. Br. 4-5).
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We are not persuaded. Ter-Ovanesyan is replete with teachings of
sensors which determine changes in the article that indicate incontinent
events (FF 1-4). Further Ter-Ovanesyan expressly teaches that “[p]roactive
sensors 60 in an article may measure many different inputs in order to
predict an event” (Ter-Ovanesyan, col. 13, ll. 16-18; FF 9). We conclude
that the ordinary artisan would reasonably interpret Ter-Ovanesyan’s
teaching to predict an event using sensors as satisfying the claimed required
of predicting an incontinent event as required by claim 1.
Appellants contend that “despite Ter-Ovanesyan’s laundry list sensed
inputs, and other than in a couple examples, Ter-Ovanesyan does not enable
one skilled in the art to make much of what Ter-Ovanesyan intends to
disclose, much less enabling one skilled in the art to make the subject matter
of claim 1” (App. Br. 5).
We are not persuaded. We note that with “respect to the prior art
printed publications, these references must be enabling, thus placing the
allegedly disclosed matter in the possession of the public.” In re Epstein, 32
F.3d 1559, 1568 (Fed. Cir. 1994). However, Ter-Ovanesyan is an issued
patent, and the Federal Circuit determined that “a presumption arises that
both the claimed and unclaimed disclosures in a prior art patent are
enabled.” Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1355
(Fed. Cir. 2003). In Amgen, the court placed the burden of demonstrating
that unclaimed material in a patent was not enabled upon the party asserting
the lack of enablement. Id. Here, there is no evidence presented by
Appellants which supports a finding that Ter-Ovanesyan is not enabled. See
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In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (“Attorney’s argument in
a brief cannot take the place of evidence.”).Claims 2 and 3
Appellants contend that “Ter-Ovanesyan cannot communicate
conditions indicative of the subsequent incontinent event, or when they
occur, because Ter-Ovanesyan does not indicate a subsequent incontinent
event” (App. Br. 5).
The Examiner finds that “Ter-Ovanesyan teaches a modulating
responsive system and an open loop system that repeatedly measures input
for a desired period of time (col. 25, line 46 through col. 26, line 3, claims
24-29)” (Ans. 10). The Examiner finds that “Ter-Ovanesyan teaches
establishing threshold values for a change in property (excretion) and using
those threshold values to predicting conditions indicative of a subsequent
incontinent event based on the change in the property” (Ans. 10).
We find that the Examiner has the better position. Ter-Ovanesyan
teaches that “[n]on-limiting examples of threshold values for the bladder or
rectum which may be relevant to determining the next excretion include
about 80% of daytime maximum volume or the minimum observed
micturition or defecation volume” (Ter-Ovanesyan, col. 14, ll. 40-44; FF 5).
We agree with the Examiner that when Ter-Ovanesyan identifies a threshold
value for the bladder in order to determine the next excretion, that is a
teaching to predict a subsequent incontinent event.
Claim 5
Appellants contend that “Ter-Ovanesyan does not disclose, teach, or
suggest also electronically monitoring a second property of the absorbent
article and determining a change in the second property wherein the change
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in the second property is indicative of the physical activity level of the
wearer” (App. Br. 5).
The Examiner finds that “Ovanesyan clearly teaches the proactive
sensor may respond to one or more specific inputs (col. 11, lines 56-57)”
(Ans. 10-11). The Examiner finds that Ter-Ovanesyan “discloses detecting
a physical activity level of the wearer, which includes the step of monitoring
the amount of urination or defecation responding to the specific input” (Ans.
11).
We find that the Examiner has the better position. Ter-Ovanesyan
teaches that “[p]roactive sensors 60 in an article may measure many
different inputs in order to predict an event” (Ter-Ovanesyan, col. 13, ll. 16-
18; FF 9). Ter-Ovanesyan’s teaching of “many different inputs” is an
express teaching of at least a second property (FF 9). Ter-Ovanesyan
teaches that:
Proactive sensors may respond to one or more specific
inputs. Examples of inputs that may be detected by a
proactive sensor of the present invention in order to predict.
an impending event include, but are not limited to, attitude,
pressure, motion, vibration, sound, ultrasonic waves,
electrical activity, contraction, tension, bloodflow, moisture,
temperature, enzymes, bacteria, pH, conductivity, resistance,
capacitance, inductance or other chemical, biochemical,
biological, mechanical or electrical properties and/or
components of bodily wastes.

(Ter-Ovanesyan, col. 11, ll. 59-65; FF 2). We agree with the Examiner that
the ordinary artisan would recognize that properties such as bloodflow,
contraction and tension are inherently related to the physical activity level of
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the wearer. In particular, the property of motion is itself a physical activity
(FF 2).
Conclusion of Law
The evidence of record supports the Examiner’s conclusion that Ter-
Ovanesyan anticipates the claims.
B. 35 U.S.C. § 103 over Ter-Ovanesyan
The Examiner finds that “Ovanesyan at least implies that it would be
necessary to establishing pattern associated with the various biological
events that predict an incontinent. Otherwise there would be no predictive
basis for understanding which biological signals would be associated with a
forthcoming event” (Ans. 7).
Appellants contend that “Ter-Ovanesyan still does not predict
conditions indicative of a subsequent incontinent event based on the change
in a property of an absorbent article” (App. Br. 6). Appellants contend that
“[n]owhere does Ter-Ovanesyan disclose, teach, or suggest, nor does the
Examiner point to a disclosure, of determining a change in the property of
the article wherein the change is indicative of an incontinent event, and
using that change in a property to predict conditions indicative of a
subsequent incontinent event” (App. Br. 7).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner’s conclusion that Ter-Ovanesyan renders the claims
obvious?

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Principles of Law
“In proceedings before the Patent and Trademark Office, the
Examiner bears the burden of establishing a prima facie case of obviousness
based upon the prior art.” In re Fritch, 972 F.2d 1260, 1265 (Fed. Cir. 1992).
“Rejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Analysis
While the Supreme Court in KSR eliminated the absolute requirement
for teaching, suggestion or motivation to combine references in an
obviousness rejection, the Court still required that there be some rationale or
reasoning or logic to support a conclusion of obviousness. KSR, 550 U.S. at
418. In this case, the Examiner’s rationale for using patterns to predict
incontinent events is that “Ovanesyan at least implies that it would be
necessary to establishing pattern associated with the various biological
events that predict an incontinent” (Ans. 7).
The Examiner does not identify, and we do not find, any teaching in
Ter-Ovanesyan which teaches the comparison of a series of incontinent
events and determining patterns of conditions. Nor does the Examiner
provide any scientific reasoning which would explain why the pattern
determination would necessarily be obvious over Ter-Ovanesyan. The
Examiner simply states that “there would be no predictive basis for
understanding which biological signals would be associated with a
forthcoming event” (Ans. 7). However, Ter-Ovanesyan teaches
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measurement of a single parameter, such as bladder size, to determine a
subsequent incontinent event (FF 5). While this teaching reasonably
anticipates claim 1, which requires a single comparison, it does not provide
any suggestion to analyze patterns as required by claims 11 and 19.
A conclusion that the claimed subject matter is prima facie obvious
must be supported by evidence or scientific reasoning, as shown by some
objective teaching in the prior art or by knowledge generally available to one
of ordinary skill in the art that would have led that individual to combine the
relevant teachings of the references to arrive at the claimed invention. See In
re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988).
Conclusion of Law
The evidence of record does not support the Examiner’s conclusion
that Ter-Ovanesyan renders the claims obvious.
C. 35 U.S.C. § 103 over Ter-Ovanesyan and Friedman
The Examiner finds that “Friedman discloses a method of tracking the
location of patients by using diapers (2) incorporating an RF tag (16)” (Ans.
8). The Examiner finds that the combination “is no more than the
predictable use of prior art elements according to their established functions
resulting in the simple substitution of one known element” (Ans. 8).
Appellants contend that “neither Ter-Ovanesyan nor Friedman
disclose, teach, or suggest also electronically monitoring a second property
of the absorbent article and determining a change in the second property
wherein the change in the second property is indicative of the physical
position of the body of the wearer, or of a longitude and a latitude of the
wearer” (App. Br. 8).
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We find that the Examiner has the better position. Ter-Ovanesyan’s
teaching of “many different inputs” is an express teaching of at least a
second property (FF 9). Ter-Ovanesyan teaches that:
Proactive sensors may respond to one or more specific
inputs. Examples of inputs that may be detected by a
proactive sensor of the present invention in order to predict.
an impending event include, but are not limited to, attitude,
pressure, motion, vibration, sound, ultrasonic waves,
electrical activity, contraction, tension, bloodflow, moisture,
temperature, enzymes, bacteria, pH, conductivity, resistance,
capacitance, inductance or other chemical, biochemical,
biological, mechanical or electrical properties and/or
components of bodily wastes.

(Ter-Ovanesyan, col. 11, ll. 59-65; FF 2). Friedman teaches that “the
location and/or identity of one or more of the patients can be determined”
(Friedman 8 ¶ 0089). We agree with the Examiner that the use of latitude
and longitude to measure location simply represent the “predictable use of
prior art elements” (Ans. 8), since these are well known markers of location.
D. 35 U.S.C. § 103 over Ter-Ovanesyan and Roe
The Examiner finds that “Roe discloses an absorbent article that
allows a caretaker or wearer to monitor a health marker associated with food
intake” (Ans. 9). The Examiner finds that “[w]here a claimed improvement
on a device or apparatus is no more than ‘the simple substitution of one
known element for another or the mere application of a known technique to
a piece of prior art ready for improvement,’ the claim is unpatentable under
35 U.S.C. § 103(a)” (Ans. 9).
Appellants contend that “neither Ter-Ovanesyan nor Roe disclose,
teach, or suggest also electronically monitoring a second property of the
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absorbent article and determining a change in the second property wherein
the change in the second property is indicative of an intake of substance by
the wearer” (App. Br. 8).
We find the Examiner has the better position. As we have already
discussed above, Ter-Ovanesyan’s teaching of “many different inputs” is an
express teaching of at least a second property (FF 9). “The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 416 (2007).
E. 35 U.S.C. § 103 over Ter-Ovanesyan, Roe, and Nielsen
The Examiner finds that “Ovanesyan and Roe do not disclose
expressly a keyboard or an alarm in response to the presence of an insult”
(Ans. 9). The Examiner finds that “Nielsen teaches a diaper monitoring
system that uses a keyboard to input data (col. 41, lines 1-41). Nielsen
further discloses an alarm that responds to the diaper being soiled” (Ans. 9).
Appellants contend that “Ter-Ovanesyan, Roe, and Nielsen do not
disclose, teach, or suggest also electronically monitoring a second property
of the absorbent article and determining a change in the second property. In
addition, the subject matters of claims 8 and 10 are more than the mere
substitution proposed by the Examiner” (Ans. 9).
We find the Examiner has the better position. As we have already
discussed above, Ter-Ovanesyan’s teaching of “many different inputs” is an
express teaching of at least a second property (FF 9). We also agree with the
Examiner that, absent reasons to the contrary, the use of a keyboard for data
entry and the use of an alarm to alert incontinent events as taught by Nielsen
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(see Ans. 9) represent known elements which would have been obvious to
predictably combine with Ter-Ovanesyan and Roe. “The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 416 (2007).

New Grounds of Rejection
Under the provisions of 37 C.F.R. § 41.50(b), we enter the following
new grounds of rejection.
Claims 11-17 and 19-24 are rejected under 35 U.S.C. § 103(a) as
obvious over Ter-Ovanesyan and Nair5.
Findings of Fact
10. We incorporate findings of fact 1-9 from Ter-Ovanesyan
discussed above.
11. Nair teaches a device “equipped with a feature to learn the
wetting pattern of the infant to assist in toilet training of the infant” (Nair,
col. 4, ll. 4-6).
12. Nair teaches that the “wetness of the diaper is determined by
measuring the resistance offered by the moisture between the two terminals
16” (Nair, col. 4, ll. 48-50).
13. Nair teaches that the “charging time is measured by the micro-
controller 28. If the charging time for the test resistance between the contact
is shorter than that for the reference resistor, the diaper is considered wet”
(Nair, col. 4, ll. 59-62).

5 Nair, US 5,568,128, issued Oct. 22, 1996.
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14. Nair teaches an “algorithm in the program that runs in
microcontroller learns the wetting pattern of the infant. This information is
then used early warning to take the infant to the toilet” (Nair, col. 4, ll. 65-
67).
15. Nair teaches that the
learning algorithm uses a twenty-four hour clock to time
wetting events. The micro controller 28 has a timer counter
that acts as this clock. On a time chart as shown in the FIG.
6, the time line 48 is represented by a closed loop counter.
Each time instant where wetting could happen is represented
by an event marker 50. There are six event markers 50 that
represent locations of maximum likelihood of wetting on the
time line 48. Each event marker 50 has an event time 52 that
shows the time instant of wetting and an event probability
54 that shows the likelihood of wetting happening. Both
event time 52 and event probability 54 are updated each day.
If a wetting happens at or near the event time 52, the event
probability 54 is incremented and the event time 52 is
modified. If a wetting does not occur, the event probability
54 is decremented. Therefore the sensing member can learn
and unlearn wetting pattern with time.

(Nair, col. 5, ll. 1-16; emphasis added).
16. Nair teaches that “[w]hen the time counter is a few minutes
before reaching a probable event, a warning alarm is generated to take the
child to the toilet” (Nair, col. 5, ll. 18-20).
17. Nair teaches that “[w]hen the diaper is found wet, the
microcontroller 28 generates chimes through the speaker 22” (Nair, col. 4, ll.
62-64).

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Principles of Law
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) the level of ordinary skill in the art; (3) the differences between the
claimed invention and the prior art; and (4) secondary considerations of
nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17 (1966).
The Supreme Court has emphasized that “the [obviousness] 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
Int’l v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Analysis
Ter-Ovanesyan teaches electronically monitoring a property of an
absorbent article and determining a change in the property of the article
which indicates an incontinent event, including predicting an event (FF 1-9),
specifically teaching that the “diaper 20 may also comprise one or more
‘proactive’ sensors’ 60. . . . that is capable of detecting or monitoring
changes or signals in or on the body of the wearer, in the article or in the
waste, i.e., inputs, that directly relate or, at a minimum, correlate to the
occurrence of an impending event related to the bodily waste” (Ter-
Ovanesyan, col. 11, ll. 48-54; FF 1).
While Ter-Ovanesyan teaches the prediction of incontinent events,
Ter-Ovanesyan does not teach comparing conditions of a series of
incontinent events or determining patterns in those conditions.
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Nair teaches a device “equipped with a feature to learn the wetting
pattern of the infant to assist in toilet training of the infant” (Nair, col. 4, ll.
4-6; FF 11). Nair teaches an “algorithm in the program that runs in
microcontroller learns the wetting pattern of the infant. This information is
then used early warning to take the infant to the toilet” (Nair, col. 4, ll. 65-
67; FF 14). Nair teaches that the “learning algorithm uses a twenty-four hour
clock to time wetting events. . . . Each event marker 50 has an event time 52
that shows the time instant of wetting and an event probability 54 that shows
the likelihood of wetting happening. . . . the sensing member can learn and
unlearn wetting pattern with time” (Nair, col. 5, ll. 1-16; FF 15).
We find that it would have been obvious to one of ordinary skill in the
art at the time the invention was made to combine the teachings of Nair and
Ter-Ovanesyan to predict the timing of an incontinent event as required by
claims 19 and 24 since Nair teaches electronically monitoring a diaper for
wetness (FF 11-13), determining changes in the property of the diaper which
indicate an incontinent event (FF 11-14) and using a comparison of a series
of incontinent events and conditions to identify a pattern to predict a
subsequent incontinent event (FF 15). An ordinary artisan would have been
motivated to combine Nair’s pattern based learning algorithm to predict
incontinent events with Ter-Ovanesyan’s incontinent event detection and
prediction technology in order to accurately predict incontinent events in
order to improve the ability to train infants and to improve the comfort of
incontinent adults by minimizing change delay (FF 1-17).
Appeal 2010-011717
Application 11/508,670

20
With regard to claim 11, Nair teaches a predicting step which
compares a series of incontinent events and determines patterns in the
condition present at or before the incontinent events (FF 15).
With regard to claims 12 and 22, Nair teaches analysis of 6 event
markers for incontinent events (FF 15). We find that it would have been
obvious that the number of incontinent events is a routinely optimizable
variable since the ordinary artisan would screen for as many incontinent
events as may occur during a 24 hour period, in order to maximize the
comfort of incontinent adults, and maximize training of infants. See In re
Aller, 220 F.2d 454, 456 (CCPA 1955) (“[W]here the general conditions of a
claim are disclosed in the prior art, it is not inventive to discover the
optimum or workable ranges by routine experimentation.”)
With regard to claims 13, 17, and 23, Nair teaches that the patterns are
times of day (FF 15). Selection of a time delay after waking would be a
routinely optimizable choice of a time which might lead to an incontinent
event (FF 14-15).
With regard to claims 14-16, Ter-Ovanesyan teaches that “the target
or ‘trigger’ level of muscle electrical activity increase or decrease that results
in the signaling of the wearer or caregiver or the application of an electrical
stimulus may be varied or controlled by the wearer or caregiver based on
differences between individual wearers” (Ter-Ovanesyan, col. 29, ll. 1-5; FF
7). Muscle electrical activity is reasonably interpreted both directly as an
“activity level” and as a surrogate for “activity levels”, and Ter-Ovanesyan
teaches both increase and decreasing levels (FF 7).
Appeal 2010-011717
Application 11/508,670

21
With regard to claim 20, Nair teaches that the “wetness of the diaper
is determined by measuring the resistance offered by the moisture between
the two terminals 16” (Nair, col. 4, ll. 48-50; FF 12).
With regard to claims 21 and 24, Nair teaches that “[w]hen the diaper
is found wet, the microcontroller 28 generates chimes through the speaker
22” (Nair, col. 4, ll. 62-64; FF 17).
Conclusion of Law
The evidence of record supports the conclusion that the combination
of Ter-Ovanesyan and Nair renders claims 11-17 and 19-24 obvious.
SUMMARY
In summary, we affirm the rejection of claims 1-3 and 5 under 35
U.S.C. § 102(b) as anticipated by Ter-Ovanesyan. Pursuant to 37 C.F.R. §
41.37(c)(1), we also affirm the rejection of claim 9 as this claim was not
argued separately.
We reverse the rejection of claims 11-17 and 19-24 under 35 U.S.C. §
103(a) as obvious over Ter-Ovanesyan.
We affirm the rejection of claims 4 and 6 under 35 U.S.C. § 103(a) as
obvious over Ter-Ovanesyan and Friedman.
We affirm the rejection of claims 7 and 18 under 35 U.S.C. § 103(a)
as obvious over Ter-Ovanesyan and Roe.
We affirm the rejection of claims 8 and 10 under 35 U.S.C. § 103(a)
as obvious over Ter-Ovanesyan, Roe, and Nielsen.
We reject claims 11-17 and 19-24 under 35 U.S.C. § 103(a) as
obvious over Ter-Ovanesyan and Nair.
Appeal 2010-011717
Application 11/508,670

22
This decision also contains new grounds of rejection pursuant to 37
C.F.R. § 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960
(August 12, 2004), 1286 Off. Gaz. Pat. Office 21 (September 7, 2004)). 37
C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant to this
paragraph shall not be considered final for judicial review.”
Claims 11-17 and 19-24 are subject to the new grounds of rejection as
discussed above.
37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise
one of the following two options with respect to the new ground of rejection
to avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment
of the claims so rejected or new evidence relating to the
claims so rejected, or both, and have the matter reconsidered
by the Examiner, in which event the proceeding will be
remanded to the Examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record. . .

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)(2006).

AFFIRMED-IN-PART, § 41.50(b)
dm

Notice of References Cited

Application/Control No.

11/508,670
Applicant(s)/Patent Under
Reexamination

Examiner

BPAI
Art Unit

3700

Page 1 of 1

U.S. PATENT DOCUMENTS

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A US-5,568,128 10-1996 Nair -- --

B US-

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D US-

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F US-

G US-

H US-

I US-

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K US-

L US-

M US-
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T
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U

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