Ex Parte Knight et al

Patent Trial and Appeal Board

Jun 16, 2017

12968457 (P.T.A.B. Jun. 16, 2017)

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.
64642154US 01 2413
EXAMINER
ANDERSON, CATHARINE L
ART UNIT PAPER NUMBER
3778
MAIL DATE DELIVERY MODE
12/968,457 12/15/2010
23556 7590 06/16/2017
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
NEENAH, WI54956
Sandra Kay Knight
06/16/2017 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 SANDRA KAY KNIGHT, CHERI LEE SCHULTZ,
ANDREW MARK LONG, and
JANE ELIZABETH CHARBONNEAU
Appeal 2015-007140
Application 12/968,457
Technology Center 3700
Before MICHELLE R. OSINSKI, ANNETTE R. REIMERS, and
THOMAS F. SMEGAL, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Sandra Kay Knight et al. (Appellants)1 appeal under 35 U.S.C.
§ 134(a) from the Examiner’s decision rejecting claims 1—13 and 15—22
under 35 U.S.C. § 103(a) as unpatentable over Collins (US 2008/0269703
Al, pub. Oct. 30, 2008) and Roe (US 2006/0224132 Al, pub. Oct. 5, 2006).
Final Act. 2—7. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Kimberly-Clark
Worldwide, Inc. Br. 1.
Appeal 2015-007140
Application 12/968,457
THE CLAIMED SUBJECT MATTER
Claims 1 and 19 are independent. Claim 1 is reproduced below and is
illustrative of the claimed subject matter on appeal.
1. An absorbent article for preventing leakage of a liquid insult,
the article comprising:
an outer cover, a liner, and an absorbent: assembly
disposed therebetween, the liner having a body-facing surface;
an active barrier disposed between the liner and the outer
cover, wherein the active barrier is in fluid communication with
the absorbent assembly, and wherein the active barrier is adapted
to change dimensions when wetted;
the article further comprising transverse sides, wherein the
active barrier is disposed adjacent a transverse side; and
a barrier highlight disposed to overlie the active barrier to
substantially coincide with the active barrier hi a. longitudinal and
transverse direction, wherein the barrier highlight is in fluid
communication with the absorbent assembly or the active barrier,
and wherein the barrier highlight is configured to change
appearance when wetted.
OPINION
Appellants argue claims 1—13 and 15—22 as a group. Br. 3—5. We
select claim 1 as the representative claim, and claims 2—13 and 15—22 stand
or fall therewith. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Collins teaches most of the limitations of
independent claim 1, including, inter alia, an active barrier that is
(i) disposed between a liner and an outer cover of an absorbent article; (ii) in
fluid communication with an absorbent assembly of the absorbent article;
(iii) adapted to change dimensions when wetted; and (iv) disposed adjacent a
transverse side of the absorbent article. Final Act. 2 (citing Collins 45,
64, 89). The Examiner acknowledges that Collins lacks a barrier highlight
overlying the active barrier. Id. The Examiner turns to Roe, finding that
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Appeal 2015-007140
Application 12/968,457
Roe teaches “visible highlighting ... to indicate the presence of [a] wetness
sensation member . . . ; the highlighting ‘substantially’ coincides” and that
the highlighting “becomes visible from [a] body-facing surface when [it] is
wetted.” Id. at 3 (citing Roe ^fl[ 72, 85; Fig. 6a). The Examiner concludes
that it would have been obvious to one of ordinary skill in the art “to
combine the highlighting of the [wetness] sensation member of Roe with the
leakage warning element of Collins, because a longitudinally oriented
visible highlighting may serve as a visual reference for the front to back
direction, ... for orienting the article prior to applying it.” Id. (citing Roe
175).
Appellant argues that “Roe does not teach that the wetness sensation
member may be disposed to overlie an active barrier to substantially
coincide with the active barrier in a longitudinal and transverse direction
wherein the active barrier is disposed adjacent a transverse side.” Br. 4.
This argument is not persuasive because it does not address the rejection as
articulated by the Examiner. The Examiner does not rely on Roe’s wetness
sensation member, but rather on Roe’s visible highlighting that substantially
coincides with the wetness member. That is, the Examiner proposes
modifying Collins (which the Examiner finds already teaches an active
barrier disposed adjacent a transverse side of an absorbent article) merely to
provide highlighting that will overlie the active barrier. See Ans. 9 (The
“Examiner has not utilized Roe’s . . . [wetness] sensation member, only the
teaching of highlighting of Roe. The resulting combination would be the
leakage warning element of Collins having the visible highlighting] of
Roe.”). Moreover, one cannot show nonobviousness by attacking references
individually when the rejection is based on a combination of references. In
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Appeal 2015-007140
Application 12/968,457
re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellants do not persuasively
explain how the combination of Collins and Roe as set forth in the
Examiner’s rejection lacks an active barrier and barrier highlight as set forth
in claim 1.
Appellants also argue that “the intended purpose of Collins [is] to
sense and inform an absorbent article wearer when leakage is about to occur
so that the absorbent article wearer can reliably avoid leakage” (Br. 5),
whereas the purpose of Roe is “to provide a product for potty training which
provides a wetness sensation member . . . [that] indicate[s] wetness as soon
as an insult occurred,” rather than waiting until the absorbent article is
almost full {id. at 4). Appellants assert that one of ordinary skill in the art
would not be led to modify Collins with the teachings of Roe because it
would defeat the intended purpose of Collins by “highlight[ing] wetness at
the urine loading point, way before it is needed at the active barrier portion
of the product.” Id. at 5.
We are not persuaded that modifying Collins in accordance with the
teachings of Roe would defeat the purpose of Collins. This is because the
Examiner is not proposing to modify the active barrier of Collins (which
Appellants concede “sense[s] and inform[s] an absorbent article wearer
when leakage is about to occur” {id. at 4)), other than to provide a
highlighting overlying the active barrier. We do not see how the addition of
highlighting overlying the active barrier will impair in any way the purpose
of Collins. Moreover, Appellants do not persuasively explain why the
Examiner’s articulated reasoning for modifying Collins based on the
teachings of Roe—i.e., to provide a longitudinally oriented visible
highlighting that may serve as a visual reference for the front to back
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Appeal 2015-007140
Application 12/968,457
direction when orienting the article prior to applying it (Final Act. 3 (citing
Roe 175))—lacks rational underpinnings.
For the foregoing reasons, we do not find that the Examiner erred in
concluding that the subject matter of claim 1 is unpatentable over Collins
and Roe, and we sustain the rejection of claim 1, and claims 2—13 and 15—22
which fall therewith, under 35 U.S.C. § 103(a) as unpatentable over Collins
and Roe.
DECISION
The Examiner’s rejection of claims 1—13 and 15—22 under 35 U.S.C.
§ 103(a) as unpatentable over Collins and Roe 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)(l)(iv).
AFFIRMED
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