Ex Parte Kline et al

Board of Patent Appeals and Interferences

Feb 12, 2009

09778687 (B.P.A.I. Feb. 12, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte MARK JAMES KLINE, DONALD CARROLL, and
ANN MARIE SULLIVAN
__________

Appeal 2008-42541
Application 09/778,687
Technology Center 3700
__________

Decided:2 February 12, 2009
__________

Before DEMETRA J. MILLS, RICHARD M. LEBOVITZ, and
FRANCISCO C. PRATS, Administrative Patent Judges.

PRATS, Administrative Patent Judge.

1 Oral argument heard January 15, 2009.
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2008-4254
Application 09/778,687

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a device
for aiding in changing external articles, such as disposable diapers. The
Examiner has entered three rejections for anticipation. We have jurisdiction
under 35 U.S.C. § 6(b). We reverse.
STATEMENT OF THE CASE
The Specification discloses “active external change aids which assist
in the application or removal (i.e., changing) of articles worn external to the
wearer’s body including incontinence devices and absorbent articles such as
colostomy bags, diapers, sanitary napkins, panty liners, bandages, body
wraps, and the like” (Spec. 3). The external change aids typically have at
least “one effect generating element” that assists in applying or removing the
article (id. at 4).
“The effect generating element may either move a portion of the
article, hold a portion of the article in a generally prescribed position, or
transform at least a portion of the article in order to change the physical
properties of the article” (id.). One disclosed example of an effect
generating element that transforms the physical properties of a worn article
is a device with a thermal cell that acts on an adhesive on a worn article, the
adhesive being tacky at higher temperatures and non-tacky at lower
temperatures (id. at 10). Thus, “[b]y actively varying the tackiness of the
adhesive, a caregiver can avoid unintentional and erroneous fastening of the
fastener and allow for the use of stronger fastener adhesives at normal room
temperatures than would otherwise be practical” (id.)
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Claims 19 and 21-25 stand rejected and appealed (App. Br. 1).3
Claim 19 is representative and reads as follows:
19. A changing aid comprising a mat and at least one effect
generating mechanism joined to the mat, the effect generating
mechanism being adapted to transform at least a portion of an
article adapted to be worn externally on a body of a wearer
from a first condition to at least one second condition by
changing a size, a thickness, an absorbency, a breathability, a
flexibility, a rigidity, an elasticity, or a tackiness of the portion
of the article or by making a connection between the portion of
the article and another portion of the article or by activating or
deactivating an adhesive during an application of the article
onto the body or a removal of the article from the body to
thereby assist in the application or the removal.

The Examiner applies the following documents in rejecting the
claims:
Shaw US 2,681,032 Jun. 15, 1954
Deagan US 5,566,398 Oct. 22, 1996
Glaug US 5,797,892 Aug. 25, 1998

The following rejections are before us for review:
Claims 19, 21, 23, and 24 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Deagan (Ans. 3-4).
Claims 19 and 25 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Shaw (Ans. 4).
Claims 19, 21, and 22 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Glaug (Ans. 4).

3 Appeal Brief filed July 24, 2007.
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ANTICIPATION -- DEAGAN
ISSUE
The Examiner finds that Deagan anticipates claim 19 because the
reference discloses “a changing aid, as shown in figure 4, comprising a mat
20 and an effect generating mechanism 24, 40 joined to the mat 20 by means
26. The effect generating mechanism 24, 40 comprises an air jet” (Ans. 3).
The Examiner notes that “[w]hen the effect generating mechanism 24, 40 is
activated, it moves an article 12 that is worn externally on a body of a
wearer, thereby transforming the ar[ti]cle, to assist in the removal of the
article 12, as shown in figures 1 and 2” (id.).
Appellants argue that the Examiner erred in finding that Deagan
anticipates claim 19 because “[t]he inflation of the bladder 24 merely moves
Deagan’s helmet 12. It does not transform the helmet 12. More specifically,
the inflation of the bladder 24 clearly does not cause any of the
transformations recited explicitly in the Markush group” of claim 19 (App.
Br. 5).
The Examiner responds that “[s]ince the bladder reduces the interior
volume of the helmet by inflating and occupying the interior volume, the
bladder reduces, or changes, the size of the helmet. Inflating the bladder
transforms the helmet to a smaller size, which aids in the removal of the
helmet from the wearer’s head” (Ans. 5). Therefore, the Examiner reasons,
“Deagan fulfills the limitations of the claims” (id.).
In view of the respective positions advanced by the Examiner and
Appellants, the issue with respect to this rejection is whether the Examiner
erred in finding that claims 19, 21, 23, and 24 encompass the device
disclosed by Deagan.
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FINDINGS OF FACT (“FF”)
1. Claim 19 recites a changing aid that “assist[s] in the application or
removal” of an article adapted to be worn externally on the body of a wearer.
The changing aid has two components: (a) a mat, and (b) at least one
“effect generating mechanism” joined to the mat.
2. Claim 19 requires the effect generating mechanism to be adapted to
transform a portion of an externally wearable article from a first condition to
a second condition. The transformation is achieved by changing a size, a
thickness, an absorbency, a breathability, a flexibility, a rigidity, an
elasticity, or a tackiness of the portion of the article. The transformation
may also be achieved by making a connection between a portion of the
article and another portion of the article, or by activating or deactivating an
adhesive during an application of the article onto the body or a removal of
the article from the body.
3. The Specification discloses that when effect generating mechanisms
are used to transform an article, they act on “effect receiving elements within
the article in order to create a desired transformation of at least a portion of
the article. The active external change aid’s effect generating element
transforms, activates, or deactivates the effect receiving element in the
article to enact a change in properties within the article” (Spec. 9). Thus, the
effect generating mechanism is characterized in the Specification as part of
an “external change element” that acts on the article and is therefore separate
from it (id. at 2: 25-28).
4. The Specification discloses several embodiments in which the effect
generating mechanism acts on effect receiving elements to transform
wearable articles. Specifically, the effect generating mechanism can be a
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thermal cell, and the effect receiving element can be a temperature sensitive
adhesive on a wearable article, the thermal cell acting on the adhesive to
assist in removing the article (Spec. 10).
5. The Specification discloses that the effect generating mechanism can
be a set of electromagnets that become rigid when current is applied, and are
then allowed to act on electromagnets in the wearable article, as the effect
receiving element (Spec. 11). Alternatively, “the electromagnets are
replaced with inflating or deflating bladders to create motion and/or increase
or decrease rigidity. The bladders are operably connected between plates . . .
and a system is provided to inflate or deflate the bladders” (id.).
6. The Specification discloses that where inflatable structures are used as
transforming elements, “the effect receiving elements may . . . be inflatable
or deflatable bladders” (Spec. 11-12). Thus,
The effect generating element may be connected to the effect
receiving element in a manner which allows the effect receiving
element to temporarily inflate and to become less flexible (more
rigid). When the active external change aid’s effect generating
element is turned off or disconnected from the article, the effect
receiving element deflates allowing the structure to become
more flexible.

(Id. at 12.)
7. Deagan discloses “a helmet removal device and method for at least
partially removing the head of a wearer from within a helmet so that it can
be lifted off without applying force to the wearer’s neck” (Deagan, col. 1, l.
66 through col. 2, l. 2). The device “includes a bladder which may be folded
into a collapsed configuration and attached within the interior of a helmet at
a location generally corresponding to the top of the head of a wearer” (id. at
col. 2, ll. 11-14).
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When the bladder is inflated, the “increase in size of the bladder
caus[es] the bladder to exert opposing forces on the top of the head of the
wearer and the adjacent portion of the helmet thereby at least partially
displacing the head from within the helmet” (id. at col. 2, ll. 22-25).
8. Figure 1 of Deagan is reproduced below:

Deagan’s Figure 1 shows helmet 12 with outer shell 14, and
“[a]ttached to an inner surface 18 of the shell 14 is padding preferably at
least one and typically a plurality of pads 20” (Deagan, col. 3, ll. 1-2). Also
seen in Figure 1 is “bladder 24 . . . removably attached to the helmet 12 by
adhesive tabs or tape 26” (id. at col. 3, ll. 54-55).
9. Deagan discloses that the “bladder 24 is so constructed and arranged
that the inflation and expansion of the bladder from the collapsed
configuration, as illustrated in FIG. 1, to the expanded configuration, as
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illustrated in FIG. 2, at least partially displaces the head 16 from within the
helmet 12” (Deagan, col. 3, ll. 12-17).
10. Figure 2 of Deagan is reproduced below:

Figure 2 “is a side elevational view with parts broken away of the
device of FIG. 1, with a bladder, forming a part of the device, in an
expanded configuration” (Deagan, col. 2, ll. 40-42). Figure 2 also shows
tube 28, and “[a]ttached to the lower end . . . of the tube 28 is a connector 38
to provide a connection between the tube and a device 40 for inflating the
bladder 24. The inflating device 40 may be a canister 44 of pressurized air,
a pump or other similar device” (id. at col. 4, ll. 16-20).
PRINCIPLES OF LAW
For a reference to anticipate a claim “[e]very element of the claimed
invention must be literally present, arranged as in the claim.” Richardson v.
Suzuki Motor Co., Ltd., 868 F.2d 1226, 1236 (Fed. Cir. 1989) (emphasis
added).
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“During examination, ‘claims . . . are to be given their broadest
reasonable interpretation consistent with the specification, and . . . claim
language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art.” In re American Academy Of
Science Tech Center, 367 F.3d 1359, 1364 (Fed. Cir. 2004) (quoting In re
Bond, 910 F.2d 831, 833 (Fed.Cir.1990)).
However, “while ‘the specification [should be used] to interpret the
meaning of a claim,’ courts must not ‘import[ ] limitations from the
specification into the claim.’ . . . [I]t is improper to ‘confin[e] the claims to
th[e] embodiments’ found in the specification . . . .” In re Trans Texas
Holdings Corp., 498 F.3d 1290, 1299 (Fed. Cir. 2007) (quoting Phillips v.
AWH Corp., 415 F.3d 1303, 1323 (Fed.Cir.2005), citations omitted,
bracketed text in internal quotes in original); see also Sjolund v. Musland,
847 F.2d 1573, 1581 (Fed. Cir. 1988) (“[W]hile it is true that claims are to
be interpreted in light of the specification and with a view to ascertaining the
invention, it does not follow that limitations from the specification may be
read into the claims.”); In re Bigio, 381 F.3d 1320, 1325 (Fed Cir. 2004)
(“[A]bsent claim language carrying a narrow meaning, the PTO should only
limit the claim based on the specification . . . when [it] expressly disclaims
the broader definition.”).
Nonetheless, “[c]laims are not to be read in a vacuum[;] while it is
true they are to be given the broadest reasonable interpretation during
prosecution, their terms still have to be given the meaning called for by the
specification of which they form a part.” In re Royka, 490 F.2d 981, 984
(CCPA 1974).
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ANALYSIS
We do not agree with the Examiner that claim 19 encompasses
Deagan’s device when claim 19 is interpreted in a manner consistent with
the Specification. Proper examination of the Specification to determine the
meaning of the term “effect generating mechanism” in claim 19 shows that
the term is used to describe a mechanism that acts on an “effect receiving
element” that is part of, or placed on, a wearable article (see FF 3-6).
That is, in contrast to the effect receiving element, the effect
generating mechanism is not part of the wearable article. The term “effect
generating mechanism” in claim 19 therefore does not, in our view,
encompass apparatuses which are part of a wearable article to be removed or
applied.
In the instant case, the Examiner has designated the combination of
bladder 24 and inflating device 40 as the effect generating mechanism (Ans.
3; see also FF 8-10). However, Deagan’s device does not meet the
requirements of claim 19 because the bladder portion 24 of the effect
generating mechanism is part of the wearable article, the helmet (FF 8, 10).
Moreover, as Appellants point out (App. Br. 5), if that combination of
elements is considered the effect generating mechanism, then the actual
effect produced is the movement of the helmet, which is not one of the
transformed properties recited in claim 19.
The Examiner urges that because the bladder is inflated, the interior of
the space in the helmet is decreased, thereby decreasing the effective size of
the helmet, and meeting claim 19’s requirement of changing the size of the
article (Ans. 5). We are not persuaded by this argument.
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We note that the Specification discloses embodiments in which an
inflated bladder in a wearable article is considered to effect a change in the
rigidity of the article (see FF 5, 6). In those embodiments, however, the
bladder is considered to be an effect receiving element rather than the effect
generating element (FF 6).
Thus, in the instant case, applying the terminology used in the
Specification, Deagan’s bladder 24 corresponds to an effect receiving
element, and the inflation device 40 corresponds to the effect generating
mechanism. As can be seen in Deagan’s Figures 1 and 2, the inflating
device 40, or effect generating mechanism, is joined to the bladder by tube
28, but is not joined to the pad 20, designated by the Examiner as being the
mat of claim 19 (see FF 10).
In contrast, claim 19 requires the effect generating mechanism to be
“joined to the mat.” Thus, while Deagan’s helmet removal device may
contain elements analogous to those recited in claim 19, those elements are
not arranged in the manner recited in the claim, as required for a finding of
anticipation.
In sum, we agree with Appellants that the Examiner erred in finding
that claim 19 encompasses the device disclosed by Deagan, when the claim
is interpreted consistently with the Specification. We therefore reverse the
Examiner’s rejection of claim 19 and its dependent claims 21, 23, and 24 as
being anticipated by Deagan.
ANTICIPATION -- SHAW
ISSUE
Claims 19 and 25 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Shaw (Ans. 4). The Examiner’s rejection reads as follows:
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Shaw discloses a changing aid comprising a mat 15 and
an effect generating mechanism 18 joined to the mat 15, as
shown in figure 3. The effect generating mechanism transforms
a portion of the article by facilitating contraction of the mat 15
to allow for a connection between a first portion, signal 20, and
a second portion, opening 21, as shown in figure 4. The
indication of wetness of the diaper assists in the removal
process of the article.

(Id.)
Appellant argues that the rejection confuses the changing aid and the
article on which the changing aid acts (App. Br. 10), and “also confuses two
fundamental concepts, namely making a connection between two structural
elements, on the one hand, and aligning two structural elements, on the other
hand” (id. at 11).
In view of the respective positions advanced by the Examiner and
Appellants, the issue with respect to this rejection is whether the Examiner
erred in finding that claims 19 and 25 encompass the device disclosed by
Shaw.
FINDINGS OF FACT
11. Shaw discloses an “accessory for infants’ diapers” which is “an
extremely simplified device for visibly indicating a condition of dampness
of said diapers” (Shaw, col. 1, ll. 1-4).
12. Figure 1 of Shaw is reproduced below:

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Figure 1 shows Shaw’s elongated device 10 placed within a baby’s
diaper 25.
13. Figures 2-4 of Shaw are reproduced below:

Figure 2 shows “a front elevational view of the accessory. Fig. 3 is a
section taken on line 3-3 of Fig. 2. Fig. 4 is a section like Fig. 3 showing the
parts of the accessory in indicating position” (Shaw, col. 1, ll. 22-25).
14. Shaw discloses that the device contains “a resilient member 15 such
as a rubber band,” the upper end of the resilient member being fastened to
the top of the device and the lower end being fastened to “frangible means
18 which preferably takes the form of a strip of paper” which is securely
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fastened to the lower end of the device (Shaw, col. 1, l. 47, through col. 2, l.
3).
15. Shaw discloses:
[T]he frangible means 18 normally holds the resilient member
15 under tension in a longitudinally stretched condition such
that an indicator 20 formed in the face of the rubber band is out
of registry with a visible reference element 21 on the upper part
of the base member which takes the form of an aperture
extending through the upper end of the side wall 11 of the said
base member.

(Shaw, col. 2, ll. 4-12; see also Figure 3).
16. Shaw discloses that when the device is placed in an infant’s diaper,
and moisture passes through slot 22, the frangible means 18 ruptures,
thereby allowing the stretched resilient member 15 to move upward, placing
the indicator section 20 adjacent to aperture 21, thereby making the indicator
section visible through the aperture 21 (Shaw, col. 2, ll. 23-37).
Shaw states that “[i]t is contemplated that the indicator 20 be of a
contrasting color with respect to the exterior face of the side 11 so that the
presence of the indicator beneath the aperture 21 will provide a visible signal
indicating that the infant’s diaper is wet and requires attention” (id. at col. 2,
ll. 32-37).
ANALYSIS
We do not agree with the Examiner that claim 19 encompasses
Shaw’s device. The Examiner finds that Shaw’s frangible means 18
corresponds to the effect generating mechanism 18 (Ans. 4; see also FF 13-
15). The Examiner reasons that the “effect generating mechanism
transforms a portion of the article by facilitating contraction of the mat 15 to
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allow for a connection between a first portion, signal 20, and a second
portion, opening 21, as shown in figure 4” (id.).
However, as discussed above, when claim 19 is interpreted in a
manner consistent with the Specification, the term “effect generating
mechanism” in claim 19 does not encompass apparatuses which are part of a
wearable article to be removed or applied. In the instant case, if the
wearable article that is transformed is Shaw’s device, as the Examiner
appears to find, Shaw fails to meet the requirements of claim 19, because the
device is therefore a part of the wearable article (see FF 13-15).
Moreover, even if the diaper is considered to be the wearable article,
frangible means 18 does not transform the diaper in any of the ways recited
in claim 19. Thus, regardless of whether the diaper or Shaw’s device is
considered to be the wearable article recited in claim 1, we agree with
Appellants that the Examiner has not shown that Shaw discloses a device
having all of the elements of claim 19, in the claimed arrangement.
We therefore reverse the Examiner’s rejection of claim 19, and its
dependent claim 25, as anticipated by Shaw.
ANTICIPATION -- GLAUG
ISSUE
Claims 19, 21, and 22 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Glaug (Ans. 4). The Examiner cites Glaug as disclosing “a
changing aid comprising a mat 62 and an effect generating mechanism 64
joined to the mat 62, as shown in figure 3, which are comprised in an article
to be worn externally on the body of a wearer” (id.).
The Examiner reasons that the effect generating mechanism 64
“transforms the article by changing the thickness and absorbency of the
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article, as disclosed in column 4, lines 25-29 . . . [and] assists in the removal
of the article by signaling to the wearer that urination has occurred, as
disclosed in column 1, lines 21-35” (id.). The Examiner notes that “[t]he
effect generating mechanism produces a thermal effect, as disclosed in
column 8, lines 51-64” (id.).
Appellants contend that the Examiner erred in finding that Glaug
anticipates claim 19 because, “[a]lthough the temperature change substance
64 of Glaug may have an effect as to when a wearer may desire to have a
diaper removed, the temperature change substance 64 does not ‘assist in the
removal’ of a diaper” as required by claim 19 (Reply Br. 5).
In view of the respective positions advanced by the Examiner and
Appellants, the issue with respect to this rejection is whether the Examiner
erred in finding that Glaug meets all of the limitations of claim 19, in
particular the limitation requiring the changing device to “assist in the
application or removal” of an article adapted to be worn externally on the
body of a wearer.
FINDINGS OF FACT
17. Glaug discloses “a pad that can be positioned in a child’s garment at
selected times to enhance the toilet training process by providing an
indication of when urination occurs to the child” (Glaug, col. 1, ll. 11-14).
Glaug discloses that, in certain embodiments, “[t]he toilet training aid may
provide the wearer with a cool or warm sensation, a wet sensation, an
expanding or contracting dimensional change sensation, or some
combination of temperature, wet, and dimensional sensations to signal to the
child that urination is occurring” (id. at col. 2, ll. 26-31).
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18. Figure 3 of Glaug, reproduced below, shows a transverse section of
Glaug’s device, “but with the components of the toilet training aid separated
from one another to better illustrate the invention” (Glaug, col. 2, ll. 54-57):

Figure 3 shows “pad 50 . . . [which] is adapted to provide the wearer
with a noticeable warm or cool sensation and a noticeable wet sensation,
which facilitate recognition by the wearer that urination is occurring”
(Glaug, col. 5, ll. 21-24). Figure 3 also shows “temperature change member
54 [which] desirably includes a temperature change substance 64 that, in the
illustrated embodiments, is in the form of particles captured between a pair
of containment layers 66” (id. at col. 8, ll. 36-39).
19. Glaug states:
The temperature change substance 64 is responsive to
contact with an aqueous solution such as urine to either absorb
or release heat. The mechanism by which this is accomplished
is the dissolution of the substance in the aqueous solution, the
swelling of the substance in the aqueous solution, or the
reaction of the substance in the aqueous solution. In particular
embodiments, the temperature change substance 64 is a particle
which has a substantial energy difference between a dissolved
state and a crystalline state, so that energy in the form of heat is
absorbed or released to the environment upon contact with
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urine. In other embodiments, the temperature change substance
64 releases or absorbs energy during swelling or reacting of the
substance in an aqueous solution.

(Glaug, col. 8, ll. 51-64.)
PRINCIPLES OF LAW
“It is well settled that the recitation of a new intended use for an old
product does not make a claim to that old product patentable.” In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997).
Thus, functional limitations directed to intended uses in an apparatus
claim do not serve to distinguish the claimed apparatus from prior art
apparatuses inherently capable of performing the claimed function. See id.
at 1478-79 (holding that a prior art apparatus meeting all claimed structural
limitations was anticipatory because it was inherently capable of performing
the claimed function); see also In re Swinehart, 439 F.2d 210, 213, (CCPA
1971) (“‘Functional’ terminology may render a claim quite broad . . . [;] a
claim employing such language covers any and all embodiments which
perform the recited function.”).
ANALYSIS
We do not agree with the Examiner that claim 19 encompasses
Glaug’s device. Claim 19 recites that the claimed changing aid must “assist
in the application or removal” of an article adapted to be worn externally on
the body of a wearer.
We note that an intended use recitation is met by a device capable of
performing the claimed function. See Schreiber, 128 F. 3d at 1478-79;
Swinehart, 439 F.2d at 213. Thus, the intended use recitation in claim 19
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encompasses devices capable of aiding the actual process of applying or
removing a wearable article.
In the instant case Glaug’s device produces a thermal or swelling
effect that notifies the user that urination is occurring (see FF 17-19).
However, the Examiner has not explained, and we do not see, how notifying
the wearer that urination has occurred assists the wearer or caretaker in the
actual process of applying or removing the article. We therefore do not
agree with the Examiner that it is reasonable to interpret the claim 19 as
encompassing Glaug’s device.
Moreover, as discussed above, when viewed in light of the
Specification, the term “effect generating mechanism” in claim 19 does not
encompass apparatuses which are part of the wearable article. In contrast, in
the instant case, the effect generating mechanism 64 is part of the worn
article (see FF 18, 19).
In sum, we agree with Appellants that the Examiner erred in finding
that claim 19 encompasses Glaug’s device. We therefore reverse the
Examiner’s rejection of claim 19, and its dependent claims 21, and 22, as
anticipated by Glaug.
SUMMARY
We reverse the Examiner’s rejection of claims 19, 21, 23, and 24
under 35 U.S.C. § 102(b) as anticipated by Deagan.
We also reverse the Examiner’s rejection of claims 19 and 25 as
anticipated by Shaw.
We reverse the Examiner’s rejection of claims 19, 21, and 22 as
anticipated by Glaug.

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REVERSED

LP

THE PROCTER & GAMBLE COMPANY
INTELLECTUAL PROPERTY DIVISION-WEST BLDG.
WINTON HILL BUSINESS CENTER – BOX 412
6250 CENTER HILL AVENUE
CINCINNATI, OH 45224
20