Ex Parte Song et alDownload PDFPatent Trial and Appeal BoardNov 30, 201713332109 (P.T.A.B. Nov. 30, 2017) Copy Citation 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. 13/332,109 12/20/2011 Xuedong Song 64686994US01 9700 23556 7590 11/30/2017 KIMBERLY-CLARK WORLDWIDE, INC. Patent Docketing 2300 Winchester Rd. NEENAH, WI54956 EXAMINER KID WELL, MICHELE M ART UNIT PAPER NUMBER 3761 MAIL DATE DELIVERY MODE 11/30/2017 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, FULIANG CHENG, KAREN MELOY GOEDERS, and YONG LI Appeal 2016-008701 Application 13/332,109 Technology Center 3700 Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and BRANDON J. WARNER, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Xuedong Song et al. (“Appellants”)1 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1—4, 9, 11—13, 15, and 17— 20.2 We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellants, the real party in interest is Kimberly-Clark Worldwide, Inc. Br. 1. 2 Claims 5—8, 10, 14, and 16 are cancelled. Br. 2. Appeal 2016-008701 Application 13/332,109 THE CLAIMED SUBJECT MATTER Claims 1 and 15 are independent. Claim 1 is reproduced below and is illustrative of the subject matter on appeal. 1. A personal care absorbent article comprising: a baffle comprising a fluid-impermeable matrix material having a base component disposed therein; a liquid-permeable topsheet; an absorbent core positioned between the baffle and the topsheet; and a color change indicator comprising a pH indicator composition and an acid component; wherein the acid component is disposed on a surface of the baffle; and wherein the acid component and the base component are configured to chemically react with one another in the presence of an effective amount of water. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: McKieman US 2008/0228157 A1 Sept. 18,2008 REJECTIONS I. Claim 11 stands rejected under 35U.S.C. § 112, second paragraph, as being indefinite. Final Act. 2—3. II. Claims 1—4, 9, 12, 13, 15, and 17—20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McKieman. Id. at 4—7. 2 Appeal 2016-008701 Application 13/332,109 OPINION Rejection I The Examiner determines that claim 11 is indefinite because it depends from canceled claim 10. Final Act. 2—3. Appellants do not present any substantive argument contesting the rejection, but, instead, acknowledge that the claim “includes a misdirected dependency (should be to claim 1).” Br. 3.3 Accordingly, we summarily sustain the rejection of claim 11 under 35U.S.C. § 112, second paragraph as being indefinite. See In re Berger, 279 F.3d 975, 984—85 (Fed. Cir. 2002) (holding that the Board did not eiT in sustaining a rejection under 35U.S.C. § 112, second paragraph, when the applicant failed to contest the rejection on appeal). Rejection II Claims 1—4, 9, 12, and 13 In rejecting independent claim 1, the Examiner finds that McKieman teaches, inter alia, a personal care absorbent article including “a baffle (26) comprising a fluid-impermeable matrix [0120-0121] having a base component [0070-0071] disposed therein [0041—0042,0051]” and “a color change indicator comprising a pH indicator composition [0069] and an acid component [0070].” Final Act. 4; see also Ans. 8 (explaining that an indicator in the absorbent article is “a wicking member that includes first (720) and second (730) transferring members, and . . . that the transfer member(s) may include an acid and/or base that are configured to chemically react with one another in the presence of an effective amount of 3 Appellants also note that “a similar situation exists in claim 17, which should depend from claim 15.” Br. 3; see id. at 9 (Claims App.) (claim 17 depending from canceled claim 16). However, claim 17 does not presently stand rejected as indefinite. 3 Appeal 2016-008701 Application 13/332,109 water (moisture)”). The Examiner acknowledges that “[t]he difference between McKieman and claim 1 is the explicit recitation that the acid component is disposed on a surface of the baffle.” Id. at 5. However, the Examiner determines that “[i]t would have been obvious to one o[f] ordinary skill in the art to provide the acid component on a surface of the baffle because McKieman discloses that the indicators may be attached to any layer of the article as set forth in [0042] and [0114].” Id. Appellants argue that “McKieman does not dispose a base element into a fluid-impermeable matrix material.” Br. 5. In particular, Appellants assert McKieman describes “reactive elements (such as an acid and a base) that are completely or partially encapsulated by non-reactive elements (see, e.g., paragraphs [0070, 0078]).” Id. at 4. According to Appellants, the claimed “matrix is not an encapsulate like that suggested by McKieman,” and “does not dissolve like an encapsulating material.” Id. This argument does not identity error in the Examiner’s findings as to the disclosure of McKieman presented in the rejection. Although paragraph 78 of McKieman teaches that “[t]he indicating members may comprise reactive elements that are completely or partially encapsulated by nonreactive portions or non reactive elements 990” (emphasis added), the Examiner does not rely on this disclosure of McKieman in rejecting claim 1. See Final Act. 4—5; see also Ans. 8. In this regard, Appellants do not specifically address the cited portions of McKieman relied upon by the Examiner in the rejection, or persuasively explain why the findings based on these portions are in error. Appellants also argue that “McKieman does not dispose an acid component on a surface of a matrix material.” Br. 5. In particular, Appellants assert that McKieman discloses “a further embodiment having an 4 Appeal 2016-008701 Application 13/332,109 acidic fluid flowing in a wicking structure toward a basic structure to cause a pH change.” Id. at 4. Appellants argue that, in contrast, claim 1 does not recite a wicking member, but rather, requires the acid component be disposed on the baffle surface. Id. This argument is not persuasive because it is not responsive to the rejection presented by the Examiner. First, the claim does not recite any limitations that would exclude a wicking member, such that Appellants have not provided evidence or persuasive reasoning as to why the Examiner’s reliance on the wicking member embodiment of McKieman is in error. Second, as discussed above, the Examiner acknowledges that McKieman does not disclose that the acid component is disposed on a surface of the baffle, but, rather, determines that such a feature would have been obvious to one of ordinary skill in the art. See Final Act. 5; Ans. 9. Appellants do not specifically address the reasoning articulated in support of the proposed modification of McKieman or persuasively explain why the reasoning lacks rational underpinnings. For the foregoing reasons, Appellants do not apprise us of error in the Examiner’s conclusion that McKieman renders obvious the subject matter of independent claim 1. Accordingly, we sustain the rejection of claim 1, and its dependent claims 2-4, 9, 12, and 13, for which Appellants provide no separate arguments {id. at 5), under 35 U.S.C. § 103(a) as unpatentable over McKieman. Claims 15 and 17—20 In rejecting independent claim 15, the Examiner relies on the findings made in connection with independent claim 1, but acknowledges that “[t]he difference between McKieman and claim 15 is the provision that the indicator includes a temporary barrier layer with the acid component and 5 Appeal 2016-008701 Application 13/332,109 base component disposed in specific areas thereon.” Final Act. 6. However, the Examiner determines that it would have been obvious “to provide an indicator composition with the temporary barrier as claimed because McKieman discloses that the indicator materials, acid component and/or base component may be integrated or separated as set forth throughout the disclosure.” Id. (citing McKieman || 43, 78). According to the Examiner, “McKieman also teaches that the components may be attached to any component of the article as set forth in at least [0042] therefore providing the motivation to rearrange the location of the acid and/or base component as desired.” Id. (emphasis added). The Examiner further explains that McKieman “seeks to utilize barrier layer[s] and/or protective layers that temporarily keep the reactive elements separate as set forth in at least [0092].” Ans. 9; see also id. (explaining that McKieman’s “disclosure is replete with examples of adding additional layers [0093], utilizing coatings [0071], providing additional materials [0081], etc. to control reaction time, and subsequent indication of the wetness event”); see also id. at 10 (“the general teaching of providing a reactive combination of elements on opposite sides of a substrate is there [in McKieman]”). Appellants argue that McKieman does not teach or suggest a temporary barrier layer. Br. 5. In particular, Appellants assert that “it is not clear how or why one could modify McKieman to obtain the claimed structure.” Id. According to Appellants, “[n]owhere in McKieman is it suggested that one can use a temporary barrier layer separating reactive components.” Id. This argument is not persuasive because it fails to specifically address or identify error in the Examiner’s findings and reasoning articulated in support of the conclusion of obviousness based on 6 Appeal 2016-008701 Application 13/332,109 the disclosure of McKieman. As discussed above, the Examiner acknowledges that McKieman does not explicitly disclose the disputed limitation. Instead, the Examiner concludes that, given the various teachings of McKieman, it would have been obvious to one of ordinary skill in the art to use a temporary barrier layer to separate acid and base components. See Final Act. 6; Ans. 9—10. Moreover, to the extent Appellants’ argument appears to insist on an explicit teaching, suggestion, or motivation in McKieman to support the Examiner’s conclusion of obviousness, such an argument has been foreclosed by the Supreme Court. KSR Int 7 Co. v. Teleflex Inc., 550 U.S. 398, 415, 419 (2007) (stating that a rigid insistence on teaching, suggestion, or motivation is incompatible with its precedent concerning obviousness). Rather, the Court requires that we look to whether the Examiner has provided “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) (cited with approval in KSR, 550 U.S. at 418). Here, Appellants do not specifically address the Examiner’s reasoning articulated in support of the conclusion of obviousness, or explain why this reasoning lacks rational underpinnings. See Final Act. 6; Ans. 9-10. For the foregoing reasons, Appellants do not apprise us of error in the Examiner’s conclusion that McKieman renders obvious the subject matter of independent claim 15. Accordingly, we sustain the rejection of claim 15, and its dependent claims 17—20, for which Appellants provide no separate arguments (Br. 5—6), under 35 U.S.C. § 103(a) as unpatentable over McKieman. 7 Appeal 2016-008701 Application 13/332,109 DECISION The Examiner’s decision to reject claim 11 under 35 U.S.C. § 112, second paragraph, as being indefinite is affirmed. The Examiner’s decision to reject claims 1—4, 9, 12, 13, 15, and 17— 20 under 35 U.S.C. § 103(a) as unpatentable over McKieman is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 8 Copy with citationCopy as parenthetical citation