Ex Parte Nandrea et al

Patent Trial and Appeal Board

Dec 8, 2016

13033014 (P.T.A.B. Dec. 8, 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.
13/033,014 02/23/2011 Jennifer Joan Nandrea 10571C 8040
27752 7590 12/12/2016
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
TREYGER, ILYA Y
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
12/12/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
centraldocket. im @ pg. com
pair_pg @ firsttofile. com
mayer.jk @ pg. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JENNIFER JOAN NANDREA and MASAHARU NISHIKAWA
Appeal 2015-000661
Application 13/033,014
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
TIMOTHY G. MAJORS, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL1
This is an appeal under 35 U.S.C. § 134 involving claims 1—52 and
11—18 (Br. 2-4, 6—7). Examiner entered rejections under 35 U.S.C. § 103(a).
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
STATEMENT OF THE CASE
Appellants’ invention “relates generally to absorbent articles, and
more specifically to absorbent articles including a sensation aspect that
1 Appellants identify the Real Party in Interest as The Procter & Gamble
Company of Cincinnati, Ohio (Br. 1).
2 The rejection of claims 6—10 has been withdrawn (see Ans. 8).
Appeal 2015-000661
Application 13/033,014
conveys a signal when wet” (Spec. 1:7—8). Independent claim 1 is
representative and reproduced in the Claims Appendix of Appellants’ Brief.
Claims 1—5 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Olson ’ 1733 and Seger.4
Claims 11—18 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Olson ’173, Seger, and Olson ’797.5
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
FACTUAL FINDINGS (FF)
FF 1. Figure 6 of Olson ’173 is reproduced below:
Figure 6 shows “a section view of a particular aspect of the training pants”
(Olson ’173 115) having “a temperature change member 70” {id. at 140)
and “an absorbent body 44” {id. at 148; see also Ans. 3—4).
3 Olson, US 2007/0083173 Al, published Apr. 12, 2007.
4 Seger et al., US 5,800,416, issued Sept. 1, 1998.
5 Olson et al., US 6,635,797 B2, issued Oct. 21, 2003.
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Appeal 2015-000661
Application 13/033,014
FF 2. Seger suggests that “the size and absorbent capacity of the absorbent
core may be varied to accommodate different uses such as incontinence
pads, pantiliners, regular sanitary napkins, or overnight sanitary napkins”
(Seger 13:46—50; see also Ans. 4—5).
FF 3. Seger suggests that “depending upon the particular application it may
be desirable to establish gradients in any given direction or directions within
the member and/or provide identifiable strata within such a member so as to
provide regions of differing density, basis weight, composition,
hydrophilicity, or other properties to suit a particular application” (Seger
20:42-48; see also Ans. 3, 5).
ANALYSIS
The combination of Olson 7 73 and Seger.
Appellants’ independent claim 1 requires, inter alia, “the temperature
sensation aspect is positioned on the targeted zone of reduced absorbent
capacity on the core that correlates to a sensation aspect position of the core”
(see Br. 9).
Examiner finds that Olson ’173 suggests “an absorbent body 44
disposed between the backsheet and the topsheet (page 4, [0047], lines 8—
10)” and “a temperature change member disposed with the absorbent body
(Page 1, [0005], lines 7, 8)” (Ans. 3). Examiner recognizes, however, that
“Olson does not expressly disclose [an] article, wherein the absorbent body
forms a targeted zone of reduced absorbent capacity” that absorbs less urine
than surrounding areas of the core (id. ). To make up for the foregoing
deficiency in Olson, Examiner relies on Seger to “teach[] an absorbent
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Application 13/033,014
article, wherein the absorbent core if desired may deviate from a
homogeneous profile establishing gradients in any desired direction (col. 20,
lines 40-48) which reads on forms a targeted zone of reduced absorbent
capacity and an acquisition layer (col. 4, lines 31—67)” (id.). Based on the
foregoing, Examiner concludes that it would have been prima facie obvious,
at the time of Appellants’ claimed invention, to “supply the absorbent article
of Olson with the absorbent core forming a targeted zone of reduced
absorbent capacity, as taught by Seger, in order to accommodate different
uses such as incontinence pads, party-liners, regular sanitary napkins, or
overnight sanitary napkins, as motivated by Seger (col. 13, lines 47—50)” (id.
at 4; see also id. at 8). While this may be true, Examiner fails to account for
the location of the “temperature sensation aspect” as set forth in Appellants’
claimed invention (see Br. 9; see also id. at 3 (“Olson ’173 is not understood
to disclose an absorbent body with a zone of reduced absorbent capacity . . .
and Seger fail to disclose a temperature sensation aspect positioned on a
targeted zone of reduced absorbent capacity of a core”); cf. Ans. 3^4 and 7—
9).
As Appellants explain, “the Examiner fails to describe what would
have prompted a person of ordinary skill to modify the cited combination of
Olson ’173 and Seger to position a temperature sensation aspect on a
targeted zone of reduced absorbent capacity of a core” (Br. 3). “[Rejections
on obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.” In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006).
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Appeal 2015-000661
Application 13/033,014
The preponderance of evidence on this record fails to support
Examiner’s conclusion that it would have been obvious to modify the pant
of Olson ’173 such that “the temperature sensation aspect is positioned on
the targeted zone of reduced absorbent capacity on the core that correlates to
a sensation aspect position of the core” as claimed.
The combination of Olson ’173, Seger, and Olson ’797\
Appellants’ independent claim 11 requires, inter alia, “the targeted
zone of reduced absorbent capacity of the absorbent core is adjacent the
temperature sensation aspect” (see Br. 11).
Examiner determines that “[t]he rationale of obviousness rejection
discussed above in claim 1 is incorporated herein in its entirety” (Ans. 5; see
also id. at 8). Based on the combination of Olson ’173, Seger, and Olson
’797, Examiner concludes that it would have been obvious to “employ the
active graphic of Olson ’797 to the article of Olson ’173 / Seger in order to
provide the article with the training features” {id. at 5). Examiner, however,
failed to establish that Olson ’797 makes up for the deficiency in the
combination of Olson ’173 and Seger as discussed above.
CONCLUSION OF LAW
The preponderance of the evidence relied upon by Examiner fails to
support a conclusion of obviousness.
The rejection of claims 1—5 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Olson ’173 and Seger is reversed.
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Appeal 2015-000661
Application 13/033,014
The rejection of claims 11—18 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Olson ’173, Seger, and Olson ’797 is
reversed.
REVERSED
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