Ex Parte Schroer

Patent Trials and Appeals Board

Dec 12, 2014

11751963 - (D) (P.T.A.B. Dec. 12, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte CHARLES F. SCHROER, JR.1
__________

Appeal 2012-005513
Application 11/751,963
Technology Center 3700
__________

Before DONALD E. ADAMS, ERIC B. GRIMES, and
ULRIKE W. JENKS, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an
absorbent article with a wetness indicator, which have been rejected for
indefiniteness, anticipation, and obviousness. We have jurisdiction under
35 U.S.C. § 6(b). We reverse.
STATEMENT OF THE CASE
The Specification discloses “an absorbent article, such as a diaper or
training pants, that greater [sic] resembles the appearance of regular

1 According to Appellant, the Real Party in Interest is Arquest, Inc. (Appeal
Br. 2).
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underwear or apparel while having a ‘hidden’ wetness indicating graphic”
(Spec. 2, ¶ 6).
The wetness indicator graphic has a permanent graphic defining
at least one non-printed area, and a changing graphic located
within the at least one non-printed area of the permanent
graphic such that the permanent graphic and the changing
graphic together give the appearance of a uniform graphic while
the changing graphic is in a non-activated state. In other words,
the changing graphic is hidden until such time as the article
becomes soiled by the wearer.
(Id. at 2, ¶ 8.)
Claims 1–19 and 33 are on appeal. Claim 1 is the only independent
claim and reads as follows:
1. An absorbent article comprising:
an outer cover having an interior surface and an opposite exterior
surface;
an absorbent core positioned adjacent the interior surface of the outer
cover; and
a wetness indicator graphic located on the outer cover, the wetness
indicator graphic comprising:
a permanent graphic defining at least one non-printed area having a
first shape; and
a changing graphic located within the at least one non-printed area of
the permanent graphic and having a second shape substantially similar to the
first shape,
wherein the permanent graphic can not be differentiated from the
changing graphic when the changing graphic is visually perceptible.

The claims stand rejected as follows:
Claims 1–19 and 33 under 35 U.S.C. § 112, first paragraph, as
indefinite (Ans. 4);
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Claims 1–3, 16, 19, and 33 under 35 U.S.C. § 102(b) as anticipated by
Liu2 (Ans. 5); and
Claims 4–15, 17, and 18 under 35 U.S.C. § 103(a) as obvious based
on Liu and Olson3 (Ans. 7).
I.
The Examiner has rejected all of the claims as indefinite, because of
the limitation stating that “the permanent graphic can not be differentiated
from the changing graphic when the changing graphic is visually
perceptible” (Ans. 4). The Examiner reasons that “[o]ne common definition
of ‘perceptible’ is ‘to become aware of through the senses’ and it appears to
contradict with the recitation of ‘can not be differentiated.’ In other words,
it is unclear as to how one becomes visually aware of a graphic when the
graphic cannot be differentiated from its surrounding graphic.” (Id. at 4–5.)
Appellant argues that
[a]s described in the specification at paragraph [0009], for
example, the permanent graphic is printed with a permanent ink
and the changing graphic is printed with a soluble ink. Thus,
with the absorbent article defined in independent claim 1, the
permanent graphic and the changing graphic cooperate to create
a wetness indicator graphic that provides a uniform overall
appearance when the changing graphic is visually perceptible
because the changing graphic is located within the non-printed
area of the permanent graphic.
(Reply Br. 3.)

2 Liu, US 2005/0234414 A1, published Oct. 20, 2005.
3 Olson et al., US 2005/0177120 A1, published Aug. 11, 2005.
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We agree with Appellant that the disputed claim language, read in
light of the Specification, is not indefinite. The Specification states that “the
permanent graphic 18 and the hidden or changing graphic 22 are printed in
the same pattern and in the same color such that the permanent graphic 18
and the changing graphic 22 together, and prior to moisture contact, give the
appearance of a uniform graphic” (Spec. 6, ¶ 29). Thus, when the changing
graphic is visible, or visually perceptible, it cannot be differentiated from the
permanent graphic. However, when the article “is exposed to wetness, the
changing graphic 22 changes in accordance with the properties of the ink
used, i.e., the changing graphic 22 washes away, changes color or fades, to
expose the shape of the non-printed areas 20 of the permanent graphic 18”
(id. at 7, ¶ 30). The claim language reflects the description set out in the
Specification.
II.
The Examiner has rejected claims 1–3, 16, 19, and 33 as anticipated
by Liu (Ans. 5). The Examiner finds that Liu describes an article meeting
all of the limitations of claim 1, including “a changing graphic (as formed by
the wetness indicator ink) located within the at least one non-printed area of
the permanent graphic and having a second shape substantially similar to the
first shape (see Fig. 4)” (id. at 6).
Appellant argues that “Liu discloses that the wetness indicator ink and
the permanent ink completely cover each other during printing” (Appeal Br.
5). Appellant bases this conclusion on Liu’s statement that “‘[t]he
background graphic that appears is bluish purple in color’ (emphasis added).
This bluish purple color appears because paragraph [0128] of Liu
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specifically discloses that the wetness indicator ink and the permanent ink
are both printed one atop the other, and then dried.” (Id.)
“Anticipation requires that all of the claim elements and their
limitations are shown in a single prior art reference.” In re Skvorecz, 580
F.3d 1262, 1266 (Fed. Cir. 2009). “[T]he examiner bears the initial burden,
on review of the prior art or on any other ground, of presenting a prima facie
case of unpatentability.” In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir.
1992). “[P]atentability is determined on the totality of the record, by a
preponderance of evidence with due consideration to persuasiveness of
argument.” Id.
In this case, the Examiner has not shown, by a preponderance of the
evidence, that Liu discloses all of the limitations of claim 1. Liu’s Figure 4
is reproduced below:

Figure 4
illustrates that the background graphic may be wetted to reveal
a central graphic that is of an entirely or of a partially different
color from the background graphic. For instance, each of the
larger and smaller bubbles in FIG. 4 prior to wetting may be
blue in color but after wetting . . . the raindrops within the
larger bubbles may appear pink in color while the surrounding
larger bubble remains blue in color after wetting.
(Liu 5, ¶ 60.)
Liu describes the embodiment shown in its Figure 4 as resulting from
printing with two different inks: a permanent ink that includes blue pigment,
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and a wetness indicator ink (or responsive color composition) that includes
red pigment and a water-soluble blue dye (id. at 8–9, ¶¶ 117–129). Liu
states that “[u]pon wetting of such an absorbent article, the blue dye in the
purple bubble background graphic dissolves in the liquid. The red pigment
of the responsive color composition and the blue pigment of the permanent
ink or composition forms an image of red rain drops within the blue bubbles
as shown in FIG. 4.” (Id. at 9, ¶ 129.)
The Examiner reasons that
in order to result in ‘red raindrops within BLUE bubbles’ . . . ,
the only possibility is for the wetness responsive ink to be
printed in the raindrops areas only, otherwise the red pigment
(which does not wash off) of the wetness indicator ink would
combine with the blue pigment of the permanent ink and make
the graphic red raindrops within purple bubbles after contact
with liquid.
(Ans. 10.)
Appellant, however, points to Liu’s paragraph 128, which states that
“[t]he background graphic that appears is bluish purple in color’” (Appeal
Br. 5). Appellant argues that this description indicates that “the wetness
indicator ink and the permanent ink are both printed one atop the other, and
then dried” (id.).
It is true that Liu’s reference to “red rain drops within the blue
bubbles” supports the Examiner’s position that Liu describes printing the
wetness indicator ink only on the areas unprinted with permanent ink.
However, Liu’s description of the background graphic as “bluish purple”
supports Appellant’s position that Liu describes printing wetness indicator
ink over areas that have also been printed with permanent ink, and therefore
does not describe “a changing graphic . . . having a second shape
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substantially similar to the first shape,” as required by claim 1. Appellant’s
position is also supported by Liu’s description of “the blue dye in the purple
bubble background graphic dissolv[ing] in the liquid” (Liu, ¶ 129).
Thus, considering the reference as a whole, we cannot say that the
Examiner has shown anticipation by a preponderance of the evidence. We
therefore reverse the rejection of claims 1–3, 16, 19, and 33 as anticipated by
Liu. The Examiner has not pointed to any teaching in Olson that remedies
the deficiency of Liu (see Ans. 7–9), and we therefore reverse the rejection
of claims 4–15, 17, and 18 as obvious based on Liu and Olson for the same
reason.
SUMMARY
We reverse all of the rejections on appeal.

REVERSED

cdc