Ex Parte Weber et al

Patent Trial and Appeal Board

Feb 8, 2013

11414031 (P.T.A.B. Feb. 8, 2013)

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.
11/414,031 04/27/2006 Shirlee A. Weber 64103467US01 2073
23556 7590 02/08/2013
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
02/08/2013 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 PATENT TRIAL AND APPEAL BOARD
_________________

Ex parte SHIRLEE A. WEBER, ANDREW M. LONG,
and ANSLEY C. ALLEN

_________________

Appeal 2012-012398
Application 11/414,031
Technology Center 1700
_________________

Before RICHARD TORCZON, SALLY GARDNER LANE, and
DEBORAH KATZ, Administrative Patent Judges.

KATZ, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-012398
Application 11/414,031

2
Appellants1 seek our review, under 35 U.S.C. § 134(a), of the
Examiner’s decision to reject claims 1-18. (App. Br. 1.) We have
jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.
Previously, the Board reversed a rejection of claims 1-18 as being
anticipated over different prior art. (See Decision on Appeal, December 4,
2009.)
Appellants claim an absorbent product, such as a diaper, that has a
wetness sensing system including a signaling device to indicate to the wearer
when body fluid is present in the absorbent article. (See Spec. at 2.)
Appellants present two independent claims: claims 1 and 18. Claim 1
is representative for most of Appellants’ arguments. Claim 1 recites:
An absorbent product having a wetness sensing system,
the product comprising:
a disposable absorbent article including a wetness
sensing component and an article theme; and
a signaling device adapted to be removably fastened to
the absorbent article, the signaling device having a signaling
device theme, wherein the signaling device theme coordinates
with the article theme.

(App. Br. 1, Claims App’x.)
Rejections under 35 U.S.C. § 102(b) over Nissim
Nissim teaches an absorbent product, as depicted in Figure 2, which is
reproduced below.

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Appeal 2012-012398
Application 11/414,031

4
Specification provides that an “article theme refers primarily to the design of
the absorbent article 20, including its shape, its coloring, and the graphics
associated with it.” (Spec., p. 18, ll. 6-9.) Appellants’ Specification
provides a similar definition of the signaling device theme, wherein “[t]he
signaling device theme refers primarily to the design of the signaling device
110, including its shape, its coloring, the sound or sounds it produces, the
other signals it produces, and the graphics associated with it.” (Id., ll. 19-
22.) Appellants’ Specification also provides that article themes and
signaling device themes may be associated with a fictional or non-fictional
character, a story, an action, or an event such as toilet training or entering
school. (Spec., p. 18, ll. 9-16 and 22-33.)
From the portions of the Specification that Appellants direct us to, the
broadest reasonable construction of the claim term “theme” encompasses the
design of the absorbent article and signaling device of Nissim. The
Specification identifies design as the primary component of a “theme.”
(Ans. 8.) Though the “themes” described in Appellants’ Specification can
include shapes and colors, as well as graphics, the Specification does not
limit a “theme” to any of these features. The absorbent article and signaling
device of Nissim have a design, such as its shape, coloring and other
features, and, thus, have a “theme,” according to the broadest reasonable
construction of the term.
Despite Appellants’ argument to the contrary (see App. Br. 5), we find
that the signaling device theme of Nissim “coordinates” with its absorbent
article theme because the sides of the signaling device are tapered to fit into
the pouch of the absorbent article. (Nissim, 2:60-62; see ans. 8.) The
Specification provides that “[t]o be coordinated, the article theme and the
Appeal 2012-012398
Application 11/414,031

5
signaling device theme can be seen as related.” (Spec., p. 19, ll. 3-4).
Because the design of the signaling device is related to the design of the
absorbent article through their complementary shapes, they are coordinated
as provided for in Appellants’ Specification. (Ans. 5.)
Appellants also argue that the absorbent product of Nissim does not
have a signaling device “adapted to be removably fastened to the absorbent
article,” as required in their claimed product because the sensor resides in a
pocket. (App. Br. 4.) Appellants do not direct us, and we do not find, that
that term “fastened” is defined in the Specfication by any particular means
of fastening or any particular strength of attachment. Because the sensor is
removably constrained by the pouch so that the members (127) of the sensor
are positioned in relation to pads (117) to allow them to form adjacent
capacitors (see Nissim, 2:51-59; Ans. 7-8), the signaling device of Nissim is
“removably fastened” to the absorbent article under the broadest reasonable
construction of the claim term.
Appellants argue for the separate patentability of claim 2, which
recites: “The product of claim 1, wherein the signaling device theme
includes a sound associated with the article theme.” (App. Br. 10, Claims
App’x.) Though Appellants agree with the Examiner that Nissim teaches a
signaling device that produces a sound (see Nissim, 3:40-42), they argue that
this sound cannot be “associated” with the article theme because the theme,
as construed by the Examiner, is the shape of the absorbent article. (App.
Br. 5.)
Similarly, Appellants argue separately for the patentability of claim
13, which recites: “The product of claim 1, wherein the signaling device has
a shape, and wherein the shape coordinates with the signaling device
Appeal 2012-012398
Application 11/414,031

6
theme.” (App. Br. 11, Claims App’x.) Appellants argue that because the
“signaling device theme” is claimed as a separate element from the shape of
the signaling device, the Examiner erred by finding the theme to be the
shape and, thus to be coordinated. (App. Br. 6.)
The claim terms “associated” and “coordinated” in regard to themes in
the claimed products are given their broadest reasonable construction.
Appellants’ Specification provides that an article theme and a signaling
device theme are “coordinated” if they “can be seen as related.” (Spec., p.
19, ll. 3-4.) The Specification provides examples of “coordinated” such as
when the article theme is “associated” with a cartoon character, including
cartoon character graphics, shapes, or sounds, and the signaling device
theme is also “associated” with the cartoon character. (Spec., p. 19, ll. 5-
11.) Appellants do not point to, and we do not find, a discussion of the term
“associated” in the Specification.
The Specification does not expressly limit the terms “associated” and
“coordinated” to any particular relationship between themes. We agree with
the Examiner that a relationship such as complementary positioning on the
product to trigger a sound indicates that the sound made by the signaling
device in Nissim is “associated” with the article theme. Similarly, the
complementary shape of the signaling device in Nissim “coordinates” with
its theme.2 (Ans. 9.)

2 We note that Appellants define a “signaling device theme” as
including sounds it produces (Spec., p. 18, ll. 19-22) and provides that an
article’s theme includes its shape (id., p. 18, ll. 7-8 and 19-21). Thus, as
construed from Appellants’ Specification, the signaling device theme of
Appeal 2012-012398
Application 11/414,031

7
Appellants also argue for the separate patentability of claim 4, which
the Examiner nominally included with the claims recited as being
anticipated by Nissim. (App. Br. 6.) Though the Examiner provided a
citation to Nissim in regard to claim 4, no other discussion was included.
(Ans. 4.) The Examiner did discuss claim 4 in regard to the rejection under
35 U.S.C. § 103(a) over Nissim and Long, along with claims 11 and 12.
(See Ans. 6.) Appellants acknowledge that “[i]n this rejection of claims 11
and 12, the Examiner inexplicably formulates a rejection of claim 4 . . . .”
(App. Br. 7.) Because it is apparent from that record (see id.) and
Appellants appear to have understood that the Examiner intended to reject
claim 4 as being obvious over Nissim and Long, we discuss the rejection of
claim 4 below.
Rejections under 35 U.S.C. § 103(a) over Nissim
The Examiner rejected claim 9 as being rendered obvious by Nissim.
Claim 9 recites: “The product of claim 1, further comprising a receiver
including a receiver theme, wherein the receiver theme coordinates with the
article theme.” (App. Br. 11, Claims App’x.)
Appellants argue that the receiver of Nissim does not coordinate with
the shape of the diaper, which the Examiner finds to be the “article theme”
of the absorbent article in Nissim. (App. Br. 7.) As explained above, the
Examiner did not err by considering the design of the article to be its
“theme” and so did not err in finding the design of the receiver in Nissim to

Nissim is inherently associated with the sounds it produces and the article
theme is inherently coordinated with its shape.
Appeal 2012-012398
Application 11/414,031

8
coordinate with the design of the article because both are part of one system
(see Nissim, 4:36-39).
Rejections under 35 U.S.C. § 103(a) over Nissim in view of Long
As explained above, we include claim 4 in our review of the
Examiner’s rejections over Nissim in view of Long.
Claim 4 recites:
The product of claim 1, wherein the signaling device theme
includes a sound and a graphic.

(App. Br. 10, Claims App’x.)
Claim 11 recites:
The product of claim 1, wherein the article theme and the
signaling device theme are associated with a fictional character.

(App. Br. 11, Claims App’x.)
Claim 12 recites:
The product of claim 1, wherein the article theme and the
signaling device theme are associated with an animated
character.
(Id.)
Long teaches diapers with graphics depicting scenes, characters,
animals, objects, etc. (Long, ¶ [0067].)
Despite Appellants’ arguments that neither Nissim nor Long teach
article themes associated with characters (App. Br. 7), we agree with the
Examiner that it would have been within the skill of one in the art to
incorporate the graphics, including characters, taught in Long into the design
of the absorbent articles and signaling devices of Nissim (Ans. 9) because
Long teaches such graphics on the same types of absorbent articles.
Appeal 2012-012398
Application 11/414,031

9
Accordingly, we are persuaded that the subject matter of Appellants’ claims
4, 11, and 13 would have been obvious over Nissim in view of Long.
Rejections under 35 U.S.C. § 103(a) over Nissim in view of Kuske
Claims 5-8 and 18 each include packaging and a “packaging theme”
or instructions and an “instruction theme.” Kuske teaches packaging for
products such as absorbent articles, wherein the packaging design has colors
that are matched to training pants for different genders of children. (Kuske,
6:15-50.)
Appellants argue in regard to claim 7 that Kuske does not teach an
article graphic and a packaging graphic that are the same. (App. Br. 8.) We
are not persuaded by Appellants’ argument that because the packaging of
Kuske has a window, Kuske obviates or teaches away from including the
same graphic on the article. (Id.) Kuske teaches articles with graphics
(Kuske, 6:3-5) and packages with illustrations (id., 6:15-20). Because
Kuske teaches matching packaging colors and article graphics, we agree that
those of skill in the art would have considered it obvious to match the article
graphic and the packaging graphic.

Conclusion
Upon consideration of the record and for the reasons given,
Appellants’ claimed absorbent products would have been obvious over the
cited prior art.
Therefore, we affirm the decision of the Examiner.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

Appeal 2012-012398
Application 11/414,031

10
AFFIRMED

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