Ex Parte Song et al

Patent Trial and Appeal BoardApr 26, 2016

12491701 (P.T.A.B. Apr. 26, 2016)

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. 12/491,701 06/25/2009 Xuedong Song 64480398US02 5893 23556 7590 04/27/2016 KIMBERLY-CLARK WORLDWIDE, INC. Patent Docketing 2300 Winchester Rd. NEENAH, WI 54956 EXAMINER STEPHENS, JACQUELINE F ART UNIT PAPER NUMBER 3761 MAIL DATE DELIVERY MODE 04/27/2016 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 XUEDONG SONG, ANDREW M. LONG, WANDUK LEE, and JUN MO GIL1 ____________________ Appeal 2014-004478 Application 12/491,701 Technology Center 3700 ____________________ Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and JACQUELINE T. HARLOW, Administrative Patent Judges. PER CURIAM DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) involving claims to absorbent products with wetness sensors. The claims are rejected as anticipated. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 According to Appellants, the Real Party in Interest is Kimberly-Clark Worldwide, Inc. (Br. 1). Appeal 2014-004478 Application 12/491,701 2 STATEMENT OF THE CASE Appellants’ invention “relates to an absorbent article having a wetness indicator, with an electron-rich leuco dye and electron deficient receptor, that communicates to a caregiver or user that the article is ready for changing” (Spec. 1:11–13). Claims 8–13, 16–19, and 22 are on appeal. Claim 16 is illustrative and reads as follows (emphasis added): 1. An absorbent article capable of determining the presence or absence of a water-containing liquid, the absorbent article comprising: a chassis comprised of a substantially liquid impermeable outercover and a liquid permeable bodyside liner, the chassis having a front waist seam, a back waist seam and a pair of opposing side seams; wherein the bodyside liner is attached to the outercover at the front waist seam, the back waist seam and the pair of opposing side seams; and an absorbent core positioned between the substantially liquid impermeable outercover and the liquid permeable bodyside liner; and a sensor integrated into the article and positioned such that the sensor is in fluid communication with bodily fluids or waste from a wearer of the article, the sensor comprising a substrate, the substrate having at least one type of wetness indicating material immobilized or printed thereon, wherein and the indicating material contains at least one electron-donating leuco dye and one electron deficient receptor, and wherein the indicating material contains a wettability enhancing agent or a hydrophilic water-soluble agent; wherein the sensor is capable of a color transition from a color to a weaker color or colorless when in contact with said bodily fluid or waste. Appeal 2014-004478 Application 12/491,701 3 Claims 8–13, 16–19, and 22 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Howell.2 We focus our discussion on independent claims 16 and 22. We agree with Appellants that the Examiner erred in rejecting claims 16 and 22 as being anticipated by Howell. Claims 16 and 22 recite “a sensor integrated into the article and positioned such that the sensor is in fluid communication with bodily fluids or waste from a wearer of the article.” We agree with the Examiner that Howell teaches that wetness can be drawn outward by a wicking layer that effectuates color change from a thermally sensitive indicator (Ans. 8; citing Howell 5:56–62). Nevertheless, we disagree with the Examiner’s finding that Howell teaches “a sensor integrated into the article and positioned such that the sensor is in fluid communication with bodily fluids or waste from a wearer of the article,” as required by claims 16 and 22 (emphasis added). As Appellants point out, Howell teaches that the thermochromic ink is distributed over the outer surface of the outer shell that is substantially non- absorbent (Br. 5–6 (emphasis added); see also Howell 3:3–9, 3:59–60, 4:50– 51). Therefore, Howell’s sensor is not in fluid communication with bodily fluids or waste. Accordingly, we conclude that the Examiner has not established an evidentiary basis on this record to support a conclusion that Howell teaches “a sensor integrated into the article and positioned such that the sensor is in fluid communication with bodily fluids or waste from a wearer of the 2 Howell, US 5,197,958, issued Mar. 30, 1993. Appeal 2014-004478 Application 12/491,701 4 article,” as is required by claims 16 and 22. Because they depend from claim 16, the rejection of claims 8–13 and 17–19 is also reversed. SUMMARY We reverse the rejection of claims 8–13, 16–19, and 22 under 35 U.S.C. § 102(b) based on Howell. REVERSED