Ex Parte Roe et al

Board of Patent Appeals and Interferences

May 8, 2012

11098362 (B.P.A.I. May. 8, 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.
11/098,362 04/04/2005 Donald Carroll Roe 9949 6605
27752 7590 05/08/2012
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
ZALUKAEVA, TATYANA
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
05/08/2012 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 DONALD CARROLL ROE, THOMAS JAMES KLOFTA,
MARK JOHN CIESKO, BARRY ROBERT FEIST,
KATHLEEN QUINLAN AMES-OOTEN, and
MATHILDE CLARISSE DELHOUME
__________

Appeal 2011-000745
Application 11/098,362
Technology Center 3700
__________

Before TONI R. SCHEINER, JEFFREY N. FREDMAN, and
ERICA A. FRANKLIN, Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-5, directed to an absorbent article. The claims have been rejected
as obvious. We have jurisdiction under 35 U.S.C. § 6(b).
Appeal 2011-000745
Application 11/098,362

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STATEMENT OF THE CASE
Claims 1-5 are pending and on appeal. Claim 1 is representative of
the subject matter on appeal:
1. An absorbent article comprising:
a backsheet having an interior surface and an opposite exterior
surface;
an absorbent assembly disposed on the interior surface;
a first appearing graphic disposed on one of the backsheet and
absorbent assembly and viewable at the exterior surface, the first appearing
graphic having an initial state in which the first appearing graphic is less
visible and, after a first period of time without the first appearing graphic
having been exposed to liquid, a subsequent state in which the first
appearing graphic is more visible, wherein all of the first appearing graphic
that has the initial state in which the first appearing graphic is less visible
and, after the first period of time without the first appearing graphic having
been exposed to liquid, has the subsequent state in which the first appearing
graphic is more visible also becomes less visible upon exposure to liquid;
and
a second appearing graphic, different from the first appearing graphic,
disposed on one of the back sheet and absorbent assembly and viewable at
the exterior surface, the second appearing graphic having an initial state in
which the second appearing graphic is less visible and, after a second period
of time without the second appearing graphic having been exposed to liquid
and the second period of time being different from the first period of time, a
subsequent state in which the second appearing graphic is more visible,
wherein all the second appearing graphic that has the initial state in which
the second appearing graphic is less visible and, after the second period
without the second appearing graphic having been exposed to liquid and the
second period of time being of time different from the first period of time,
has the subsequent state in which the second appearing graphic is more
visible also becomes less visible upon exposure to liquid; and
wherein the first appearing graphic comprises a character image and
the second appearing graphic comprises an object image, and wherein the
character image and the object image are related by a common story line;
and
wherein the first and second appearing graphics comprise liquid
soluble ink.
Appeal 2011-000745
Application 11/098,362

3
The Examiner relies on the following evidence:
Cammarota et al. US 6,307,119 B1 Oct. 23, 2001
Fernfors US 2005/0124947 A1 Jun. 9, 2005
MacDonald et al. US 2006/0114754 A1 Jun. 1, 2006
Claims 1-5 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Cammarota, Fernfors, and MacDonald.
We reverse.
Findings of Fact
1. The claims are directed, in relevant part, to an absorbent article
with a first graphic element and a second graphic element, in which each
graphic element becomes more visible as time passes without the graphic
having been exposed to liquid, and also becomes less visible upon
subsequent exposure to liquid.
2. Cammarota discloses an absorbent article “that provides toilet
training aid benefits” to a child through the use of one or more “active object
graphics” (Cammarota, col. 1, ll. 43-48). Cammarota teaches that:
The term “active graphic” . . . refers to an appearing
graphic, a fading graphic, or a combination of appearing and
fading graphics. The term “appearing graphic” is used herein to
refer to a graphic that becomes visible or becomes significantly
more visible when exposed to urine, or that becomes visible or
becomes significantly more visible with the passage of time
when exposed to the environment but not exposed to urine.
Conversely, the term “fading graphic” is used herein to refer to
a graphic that becomes invisible or becomes significantly less
visible when exposed to urine, or that becomes invisible or
becomes significantly less visible with the passage of time
when exposed to the environment but not exposed to urine.
(Id. at col. 2, ll. 25-38.)
When the active graphic is a fading graphic, the training
opportunity is based on the fact that the active objects disappear
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Application 11/098,362

4
when the child has an accident . . . [and] it can be
communicated to the child that it is within the child’s control to
permit the objects to remain visible for as long as the child can
go without wetting his or her pants.
When the active graphic is an appearing graphic as
opposed to a fading graphic, the training opportunity is based
on the fact that the caregiver can explain the appearance of a
new graphic for a reward . . . . For example, the active graphic
can be adapted to appear over time, and it can be viewed as a
reward for the child staying dry.
(Id. at col. 10, ll. 8-24.)
Discussion
The claims are directed, in relevant part, to an absorbent article with a
first graphic element and a second graphic element, in which each graphic
element becomes more visible with the passage of “dry” time, and also
becomes less visible upon subsequent wetting.
[T]he Examiner’s position [is] that [Cammarota] either teaches
the first and second appearing graphics also become less visible
upon exposure to liquid or, at the very least, teaches the
combination of appearing and fading graphics become more
visible or less visible, respectively, e.g. by changing color,
when, e.g., subject to time intervals or exposed to liquid,
respectively, and thereby either necessarily and inevitably teach
the first and second appearing graphics also become less visible
upon exposure to liquid or that it would be obvious to one of
ordinary skill in the art to provide first and second appearing
graphics which also become less visible upon exposure to liquid
in view of the recognition that such would increase the impact
to the child by increasing the opportunities for interaction
between the caregiver and the child and the desire of such by
[Cammarota] , that [Cammarota] does not clearly explicitly
teach that all of the respective first and second appearing
graphic also becomes less visible upon exposure to liquid.
However, see not only the cited portions of [Cammarota] . . .
but also [Fernfors] . . . and MacDonald] . . . Therefore, to make
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Application 11/098,362

5
the respective first and second appearing graphics that have an
initial state in which it is less visible and, after the respective
first or second period of time without having been exposed to a
liquid, a subsequent state in which the respective first or second
appearing graphic is more visible of [Cammarota] also graphics
that all become less visible upon exposure to liquid, if not
already, as taught by [Fernfors] and [MacDonald] would either
be obvious . . . i.e two equivalents are interchangeable for the
desired function, express suggestion of desirability not needed
to render such substitution obvious[.]
(Ans. 6-7.)
Appellants contend essentially that Cammarota discloses discrete
“appearing” graphics that appear over time, or upon wetting, and discrete
“fading” graphics that appear over time, or upon wetting, rather than a single
graphic element that becomes more visible over time without being exposed
to wetting, and becomes less visible upon wetting (App. Br. 4). Moreover,
Appellants contend that Cammarota’s use of the word “combination” simply
refers to “a combination of appearing and fading graphics” (Reply Br. 2;
Cammarota, col. 2, ll. 26-27), rather than “an appearing graphic that
becomes more visible after periods of time without being exposed to liquid
. . . wherein the same appearing graphic also becomes less visible after being
exposed to liquid (id.). To the extent the Examiner relies on Fernfors and
MacDonald to provide this “equivalent” element of the claims, Appellants
contend that Fernfors’ indicator device merely “provides an indication of the
length of time that has elapsed since being exposed to the moisture or liquid”
(App. Br. 5 (emphasis omitted)), while MacDonald “distinguishes [its]
disclosed timer from wetness indicators that utilize disappearing and
appearing inks” (id.).
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Application 11/098,362

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We agree with Appellants. At best, Cammarota teaches an absorbent
article that has individual graphic elements of both types: “appearing” and
“fading.” We see nothing in Cammarota that teaches or suggests a discrete
graphic element that combines both effects to become more visible with
“dry” time, and less visible upon wetting. Nor do we see anything in
Fernfors or MacDonald that makes up for this deficiency.
SUMMARY
The rejection of claims 1-5 under 35 U.S.C. § 103(a) as unpatentable
over Cammarota, Fernfors, and MacDonald is reversed.

REVERSED

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