Ex Parte Allen et al

Patent Trial and Appeal BoardOct 18, 2012

11414032 (P.T.A.B. Oct. 18, 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. 11/414,032 04/27/2006 Ansley C. Allen 22,360 2075 23556 7590 10/19/2012 KIMBERLY-CLARK WORLDWIDE, INC. Tara Pohlkotte 2300 Winchester Rd. NEENAH, WI 54956 EXAMINER TREYGER, ILYA Y ART UNIT PAPER NUMBER 3761 MAIL DATE DELIVERY MODE 10/19/2012 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 PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ANSLEY C. ALLEN, ANDREW M. LONG, SHIRLEE A. WEBER, and THOMAS M. ALES III ____________ Appeal 2010-005411 Application 11/414,032 Technology Center 3700 ____________ Before GAY ANN SPAHN, MICHAEL C. ASTORINO, and WILLIAM A. CAPP, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-005411 Application 11/414,032 2 STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1-33. Claims 34-36 have been withdrawn.1 We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER Claim 1 is the sole independent claim on appeal, representative of the subject matter on appeal, and reproduced below. 1. A wetness sensing system comprising; a first wetness sensing article; a first signaling device producing a first signal upon sensing wetness in the first wetness sensing article, wherein the first signaling device is compatible with the first wetness sensing article, and wherein the first signaling device is adapted to be attachable to a wetness sensing article by a consumer; and a second signaling device producing a second signal upon sensing wetness in the first wetness sensing article, wherein the second signaling device is compatible with the first wetness sensing article, wherein the second signaling device is adapted to be attachable to a wetness sensing article by a consumer, and wherein the second signal is not identical to the first signal. 1 Claims 34-36 were withdrawn by the Examiner in the Final Office Action mailed August 11, 2008. Appeal 2010-005411 Application 11/414,032 3 REJECTIONS The following Examiner’s rejections are before us for review. Claims 1-3, 7-10, 18-27, and 29-33 are rejected under 35 U.S.C. § 103(a) as unpatentable over Fard (US 6,097,297, iss. Aug. 1, 2000) and Navot ‘640 (US 6,348,640 B1, iss. Feb. 19, 2002). Claims 4-6 and 11-16 are rejected under 35 U.S.C. § 103(a) as unpatentable over Fard, Navot ‘640, and Navot ‘671 (US 5,904,671, iss. May 18, 1999). Claim 17 is rejected under 35 U.S.C. § 103(a) as unpatentable over Fard, Navot ‘640, and Nappholz (US 5,113,869, iss. May 19, 1992). Claim 28 is rejected under 35 U.S.C. § 103(a) as unpatentable over Fard, Navot ‘640, and Kawarizadeh (US 5,903,222, iss. May 11, 1999). OPINION Obviousness based on Fard and Navot ‘640 Claim 1 recites a wetness sensing system including “a first wetness sensing article.” Br., Claims Appendix. The Examiner found that Fard discloses “a first wetness sensing article (21).” Ans. 3. Fard describes element number 21 as “a diaper structure.” Fard, col. 8, l. 1. The Appellants contend that a standard diaper, garment, or tampon does not correspond to a “wetness sensing article.” Br. 5-6. In response, the Examiner points to the Specification at page 4, which provides examples of an absorbent article, “[t]he absorbent article may be, for instance, a diaper, a training pant, a pre-fastened pant, a swimming pant, an incontinence product, a feminine hygiene product, a medical garment, a bandage, and the like.” Ans. 15. These examples are directed to an Appeal 2010-005411 Application 11/414,032 4 “article,” particularly an “absorbent article.” The claimed term “wetness sensing article,” as recited in claim 1, requires more than just an “article.” A “wetness sensing article,” interpreted consistent with the Specification, is understood to be an “article” that is capable of sensing wetness. The Specification provides different examples of a “wetness sensing absorbent article,” which one of ordinary skill in the art would understand to be synonymous with the claimed “wetness sensing article.” See also Br. 6. For example, the Specification describes examples of a “wetness sensing article,” including: an open circuit that becomes closed when a conductive fluid, is present; or, a closed circuit that becomes open when a fluid is present. Spec. 4, ll. 6-10. In addition, the Specification adds that the “wetness sensing article” may sense wetness based on a change in electrical response to fluid measured as a circuit closing/opening or as chemical changing characteristics. Spec. 4, ll. 10-13. These examples for sensing wetness in the article all include specific circuitry located within the article to sense wetness. The addition of this circuitry provides a standard article, such as a diaper, with the capability to sense wetness, i.e., to be a “wetness sensing article” as recited in claim 1. Similarly, the Appellants contend that Fard’s diaper structure 21 lacks “conductive elements, chemical changing characteristics, attachment mechanisms, or conductive pad members,” and as such, cannot be considered a “wetness sensing article.” Br. 6. Thus, the Examiner has not explained how Fard’s diaper structure 21, by itself, is capable of sensing wetness, nor can we discern how Fard’s diaper structure 21, by itself, is capable of sensing wetness. As such, the Examiner’s finding that Fard’s diaper structure 21, by itself, corresponds to Appeal 2010-005411 Application 11/414,032 5 “a first wetness sensing article,” as recited in claim 1, is not supported by a preponderance of the evidence. Therefore, the Examiner’s decision to reject claim 1 as unpatentable over Fard and Navot ‘640 is not sustained. Additionally, the rejection of claims 2, 3, 7-10, 18-27, and 29-33, which depend from claim 1, is likewise not sustained. Obviousness based on Fard, Navot ‘640, and any one of Navot ‘671, Nappholz, or Kawarizadeh The remaining rejections based on Fard and Navot ‘640 in combination with one of Navot ‘671, Nappholz, or Kawarizadeh rely on the same unsubstantiated finding that Fard’s diaper structure 21, by itself, corresponds to “a first wetness sensing article,” as recited in claim 1. Accordingly, we cannot sustain the rejections under 35 U.S.C. § 103(a) of: claims 4-6 and 11-16 as unpatentable over Fard, Navot ‘640, and Navot ‘671; claim 17 as unpatentable over Fard, Navot ‘640, and Nappholz; and, claim 28 as unpatentable over Fard, Navot ‘640, and Kawarizadeh. DECISION We REVERSE the rejections of claims 1-33. REVERSED Klh