Ex Parte Visscher et al

Board of Patent Appeals and Interferences

Mar 5, 2012

11012997 (B.P.A.I. Mar. 5, 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.
11/012,997 12/15/2004 Ronald Bosman Visscher 9854Q 7460
27752 7590 03/06/2012
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
HAND, MELANIE JO
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
03/06/2012 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 RONALD BOSMAN VISSCHER,
PETER CHARLES MASON, JR., JEANNE MARIE HUGHES,
FOLKE SCHLUETER, EMMA SOMMA, GIOVANNI CARLUCCI, and
PAUL THOMAS WEISMAN
____________

Appeal 2010-004955
Application 11/012,997
Technology Center 3700
____________

Before JENNIFER D. BAHR, LINDA E. HORNER, and
WILLIAM V. SAINDON, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Ronald Bosman Visscher et al. (Appellants) seek our review under
35 U.S.C. § 134 of the Examiner’s decision rejecting claims 2 and 7-10.
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Application 11/012,997

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Claims 1, 3, and 4 are canceled, and claims 5, 6, and 11-20 are withdrawn
from consideration. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
THE INVENTION
Appellants’ claimed invention relates to “feminine hygiene articles
intended to be worn in women’s undergarments.” Spec. 1, l. 6. Claim 2,
reproduced below, is representative of the subject matter on appeal.
2. An array of feminine hygiene articles for placement in an
undergarment having a crotch portion bounded on opposite
sides by portions of curved leg openings, said array comprising
a plurality of feminine hygiene articles, each said feminine
hygiene article of said array having a body-facing surface, a
first end region and a second end region, said array of feminine
hygiene articles comprising at least first and second said
feminine hygiene articles differing in at least one functional
characteristic, said first and second feminine hygiene articles
each comprising a functional enhancement indicator visible
from said body-facing surface, said functional enhancement
indicator of said first and second feminine hygiene articles
being visibly different to distinguish said first feminine hygiene
article from said second feminine hygiene article, wherein each
of said feminine hygiene articles has an outer periphery and
each is identical in shape about said periphery.
THE EVIDENCE
The Examiner relies upon the following evidence:
Mattingly US 4,608,047 Aug. 26, 1986
Ruffo US Des. 327,319 Jun. 23, 1992
Samolinski US 2005/0029143 A1 Feb. 10, 2005
Farris WO 02/30347 A1 Apr. 18, 2002
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THE REJECTIONS
Appellants seek review of the following rejections:
1. Claims 2 and 7 are rejected under 35 U.S.C. § 102(b) as anticipated by
Farris.
2. Claim 8 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Farris and one of Mattingly or Ruffo.
3. Claims 9 and 10 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Farris and Samolinski.
ISSUES
The issues presented by this appeal are:
Does Farris disclose “first and second feminine hygiene articles each
comprising a functional enhancement indicator visible from said body-
facing surface” and “wherein each of said feminine hygiene articles has an
outer periphery and each is identical in shape about said periphery” as called
for in claim 2?
Would the combined teachings of Farris and Samolinski have led one
of ordinary skill in the art to use visually-perceptible colors which are “more
intense in proportion to an increased distance measured from said transverse
centerline longitudinally toward said first end region” as called for in
claim 9?
Would the combined teachings of Farris and Samolinski have led one
of ordinary skill in the art to use functional enhancement indicators that are
“nearer said first end than said second end” as called for in claim 10?
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ANALYSIS
Anticipation of claims 2 and 7 by Farris
Appellants argue claims 2 and 7 as a group. App. Br. 4. We select
claim 2 as representative. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
Appellants contend that Farris does not anticipate claim 2 because it “does
not disclose articles having functional enhancement indicators being visible
from the body-facing surface, the functional enhancement indicators of the
first and second feminine hygiene articles being visibly different.” App.
Br. 3-4 (arguing that Farris discloses only the wrappers, not the articles
contained within the wrappers, have different functional enhancement
indicators visible from the body facing surfaces of the articles).
We disagree with Appellants’ reading of Farris. Farris discloses
“[s]ignal colors may be placed on a product or its packaging in any shape
such as droplets, circles, parallelepipeds, or the like” and “signal colors may
be placed anywhere on the product, or package, e.g. on the top, sides, or
inside, or all three.” Farris 5, ll. 17-18 and 21-23 (emphases added). We
agree with the Examiner that the “top” of the product in the case of a
feminine hygiene article refers to the body-facing surface of the product.
Ans. 4. We further agree with the Examiner that Farris discloses that visibly
different signal colors are used to indicate different absorbency of the first
and second feminine hygiene articles. Ans. 4 (citing Farris 8, ll. 20-23 and
Farris 9, ll. 8-11).
Appellants also contend that Farris does not anticipate claim 2
because it “does not disclose each feminine hygiene article in the array
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having an identical shape about the periphery.” App. Br. 3. To the contrary,
as explained in the Examiner’s Supplemental Answer, the purpose of
Farris’s color indicators is to allow a user to differentiate among feminine
hygiene articles having different absorbency characteristics when the articles
look the same. Supp. Ans. 3; see also Farris 8, ll. 10-13 (“In its broadest
aspect, the present invention relates to color indicators for use with the
consumer articles (such as these mentioned previously) or their packaging.
The term ‘color,’ as used herein, relates to the phenomenon of visual
perception that enables one to differentiate otherwise identical objects.”)
(emphasis added). As such, we sustain the rejection of claims 2 and 7 under
35 U.S.C. § 102(b) as anticipated by Farris.
Unpatentability of claim 8 over Farris and one of Mattingly and Ruffo
Appellants argue the patentability of claim 8 based solely on its
dependence from claim 2 and do not otherwise contest the second ground of
rejection. App. Br. 4. We sustain the rejection of claim 8 over Farris and
one of Mattingly and Ruffo for the reasons discussed supra.
Unpatentability of claims 9 and 10 over Farris and Samolinski
Claim 9 calls for the colors to be more “intense” as they approach the
first end region.1 The Examiner found that Samolinski discloses more
indicators at the laterally disposed ends than in the center of the article and

1 Claim 9 depends ultimately from claim 2 and recites “wherein each said
functional enhancement indicator comprises visually-perceptible colors, said
visually-perceptible colors being more intense in proportion to an increased
distance measured from said transverse centerline longitudinally toward said
first end region.”
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that such an arrangement “would certainly be perceived by the human eye as
an increase in intensity of a color where the indicia are clustered near the
first end.” Ans. 6, 8 (citing Samolinski, figs. 1A, 3B). The Specification
defines “increase in intensity” to mean “an increase in the intensity of the
hue, saturation, color, or a combination of color characteristics.” Spec. 15,
ll. 25-27. The Specification also distinguishes between a gradient in visual
emphasis that results from a gradient in color intensity and a gradient in
visual emphasis that results from a gradient in the density of visually-
perceptible discrete elements. Spec. 14, ll. 30-32. The Examiner’s finding
is based on Samolinski disclosing more visual emphasis at the first end
based on a gradient in density, not intensity as called for in claim 9. As
such, we do not sustain the rejection of claim 9.
Claim 10 calls for each functional enhancement indicator to be
“nearer said first end than said second end.” The Examiner’s conclusion of
obviousness is based again on a finding that Figures 1A and 3B of
Samolinski show more indicators at the ends than in the center of the article.
Ans. 6. We agree with Appellants that the markings on Samolinski’s
Figures 1A and 3B are meant to show messages on the article and do not
provide adequate evidence of a suggestion of the placement of functional
enhancement indicators in the location called for in claim 10. Reply Br. 2.
As such, we do not sustain the rejection of claim 10.
CONCLUSIONS
Farris discloses “first and second feminine hygiene articles each
comprising a functional enhancement indicator visible from said body-
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facing surface” and “wherein each of said feminine hygiene articles has an
outer periphery and each is identical in shape about said periphery” as called
for in claim 2.
The combined teachings of Farris and Samolinski would not have led
one of ordinary skill in the art to use visually-perceptible colors which are
“more intense in proportion to an increased distance measured from said
transverse centerline longitudinally toward said first end region” as called
for in claim 9 or to use functional enhancement indicators that are “nearer
said first end than said second end” as called for in claim 10.
DECISION
We AFFIRM the decision of the Examiner to reject claims 2, 7, and 8
and REVERSE the decision of the Examiner to reject claims 9 and 10.
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

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