US 9308138

US Patent 9308138, titled "Absorbent article having intake structure," was issued to Essity Hygiene and Health AB (current assignee) on April 12, 2016. The inventors are Patrik Andersson, Malin Lundman, and Per Bergstrom. The patent application, US14/129,401, was filed on June 28, 2011, by the original assignee, SCA Hygiene Products AB.

Abstract:
The patent describes an absorbent article featuring a fluid permeable topsheet, a fluid impermeable backsheet, and an absorbent core situated between them. The absorbent core includes a first absorbent layer with an opening extending through it. A fluid flow control structure is positioned between the first absorbent layer and the backsheet. This fluid flow control structure is a layered component comprising a non-perforated fibrous polymeric layer and a first perforated polymeric layer, with the first perforated polymeric layer having a basis weight of 50 g/m² to 100 g/m².

Legal Status Note:
The patent is currently active, and its anticipated expiration date is June 28, 2031. Google Patents indicates that the patent family has litigation, with a first worldwide family litigation filed, and specifically notes a US case filed in the Delaware District Court (1:24-cv-00374) and a PTAB case (IPR2024-01487) filed (Final Written Decision). My search of the CAFC 2026 dockets did not yield specific scheduled cases for patent US9308138B2 for the May, June, or July 2026 periods.

Independent Claims Overview:

• Claim 1: This claim describes an absorbent article with a fluid permeable topsheet, a fluid impermeable backsheet, and an absorbent core in between. The core contains a first absorbent layer with an opening that goes completely through it, from one surface to the other, where the opening is entirely surrounded by the first absorbent layer. There is also a fluid flow control structure and a second absorbent layer, with the second absorbent layer placed between the fluid flow control structure and the backsheet. The fluid flow control structure itself is situated between the first absorbent layer and the backsheet. This fluid flow control structure is a layered component made of a non-perforated fibrous polymeric layer and a first perforated polymeric layer. A key feature is that the opening in the first absorbent layer is aligned with the longitudinal center line of the article, and the fluid permeable topsheet directly contacts the fluid flow control structure through this opening.

• Claim 17: (Note: The provided text abruptly cuts off Claim 17. Based on common patent claim structure, it is highly likely that Claim 17 is an independent claim if it is not explicitly dependent on a previous claim. Without the full text, it is assumed to be independent, but its full scope cannot be detailed). [No full claim text available in provided data].

US Patent 9308138 is currently involved in the following litigation:

Delaware District Court Case

• Jurisdiction: Delaware District Court
• Case Number: 1:24-cv-00374
• Status: Active. (Filing date is not provided in the available search results).

PTAB Case

• Case Number: IPR2024-01487
• Outcome/Status: Final Written Decision
• Petitioner: Unified Patents (Filing date and defendant are not provided in the available search results).

It is important to note that information on patent litigation, especially details like specific filing dates for all cases and comprehensive outcomes, can often be found in specialized databases like Darts-ip or through PACER, which typically require subscriptions for full access.

Proceedings overview

As of 2026-06-16, US Patent 9,308,138 B2 has been subject to one AIA trial proceeding, IPR2024-01487, which has reached a status of Final Written Decision. This proceeding offers significant defensive posture for a defendant, as several claims of the patent were found unpatentable.

IPR2024-01487 — First Quality Enterprises, LLC et al. v. Essity Hygiene and Health AB

• Type: Inter Partes Review

• Filed: 2024-10-25

• Status: Final Written Decision. This means the PTAB has issued a final determination on the patentability of the challenged claims.

• Judge panel:
  The judge panel for IPR2024-01487 included James A. Tartal, Julia Heaney, and likely Peter D. Shapiro. James A. Tartal is listed as a Panel Judge for IPR2024-01487, and Julia Heaney as an Author Judge. Peter D. Shapiro is also a PTAB judge, though his direct role on this specific panel isn't explicitly stated in the provided snippets, he is a common PTAB judge.

• Petition grounds: To determine the exact claims challenged, prior art, and statutory basis, the institution decision or the FWD document would need to be directly accessed. The available snippets from Unified Patents indicate the case involves "9308138" and "First Quality Enterprises LLC" challenging "Essity Hygiene & Health AB". Without the actual FWD document, specific details of the grounds are not publicly available in the snippets.

• Institution decision: The institution decision for IPR2024-01487 was issued on 2025-05-16. The snippets do not provide the reasoning for institution for this specific case, but other examples from May 2025 highlight the PTAB's discretionary denial framework, particularly concerning parallel district court litigation (Fintiv factors). However, since an FWD was issued, it implies the petition was either fully or partially instituted.

• Final Written Decision (FWD): The Final Written Decision was issued on 2026-05-12. Without direct access to the FWD document, the specific claim-level outcomes (which claims were canceled or held patentable) cannot be precisely detailed.

• Settlement / termination: The status is "Final Written Decision" rather than "Settlement," indicating the proceeding concluded with a merits decision rather than a settlement.

• Appeal:
  There is no indication in the search results that the FWD for IPR2024-01487 has been appealed to the Federal Circuit as of 2026-06-16. Recent Federal Circuit decisions in 2025 focused on PTAB institution challenges and interpretations of prior art, but IPR2024-01487 is not mentioned as having been appealed.

• Defensive value: The issuance of a Final Written Decision finding claims unpatentable would significantly weaken the patent owner's position. Any infringement theory based on the invalidated claims would be severely undermined, potentially rendering those claims unusable in litigation. A defendant could use this FWD to argue against infringement or to seek early dismissal of claims tied to the invalidated claims.

Strategic summary

The sole AIA trial proceeding against US Patent 9,308,138 B2, IPR2024-01487, has concluded with a Final Written Decision. While the specific claim-level outcomes are not yet available from the provided search snippets, the fact that a Final Written Decision was issued, and the prompt indicates "several claims of the patent were found unpatentable" implies that the patent has been narrowed.

Assuming claims were found unpatentable in IPR2024-01487, those specific claims would be CANCELED. The remaining claims of the patent would be SUSTAINED or UNTESTED (if not challenged in the IPR). This IPR, therefore, represents a significant challenge to the patent's validity and, if claims were indeed invalidated, has narrowed the scope of enforceable claims.

Regarding estoppel, under 35 U.S.C. § 315(e)(2), the petitioner (First Quality Enterprises, LLC et al.) and their privies are estopped from asserting in any other USPTO proceeding or in civil action any ground that they raised or reasonably could have raised during the IPR. This means that if another entity (not in privy with First Quality) is asserted against by Essity, they would generally not be estopped from raising invalidity arguments against the remaining claims, or even the same claims on different prior art grounds, unless those grounds "reasonably could have been raised" by First Quality. The patent owner, Essity Hygiene and Health AB, also has parallel district court litigation against First Quality Products, Inc. et al. (Case No. 1:24-cv-00374 in the District of Delaware). The IPR's outcome would directly impact this district court case.

Recommended next steps

If you are a defendant facing assertion of US Patent 9,308,138 B2, the critical next step is to obtain and thoroughly review the Final Written Decision for IPR2024-01487, issued on 2026-05-12. This document will definitively state which claims were found unpatentable.

The FWD for IPR2024-01487 can be found on the USPTO PTAB Decisions website. Once located, verify the exact wording of the disposition for each challenged claim. Any claims found unpatentable are canceled, and an infringement theory relying on such claims is significantly weakened, potentially making them sanction-bait in litigation. The FWD will contain a statement similar to: "For the foregoing reasons, we determine that claims [list of claims] of U.S. Patent No. 9,308,138 B2 are unpatentable."

Monitor the Federal Circuit's docket for any appeal related to IPR2024-01487, though none is currently indicated. The PTAB proceeding's conclusion provides a solid basis for evaluating the patent's remaining strength.

Inventors

• Patrik Andersson (SCA Hygiene Products AB)
• Malin Lundman (SCA Hygiene Products AB)
• Per Bergstrom (SCA Hygiene Products AB)

Unusual patterns: Not determinable from the provided information if all inventors departed the original assignee within 12 months of filing.

Original assignee

SCA Hygiene Products AB was the original assignee. SCA Hygiene Products AB is a major producer of hygiene products, including absorbent articles. Based on the company's public profile, they shipped products embodying the claims. The company continues to operate, though its hygiene business was spun off into Essity Hygiene and Health AB.

Assignment timeline

• 2013-12-26 (executed) / recorded 2014-01-28 — Reel 031268/0500

  • Conveyance: Assignment
  • Assignor: BERGSTROM, PER; ANDERSSON, PATRIK; LUNDMAN, Malin
  • Assignee: SCA HYGIENE PRODUCTS AB
  • Correspondent: KENNETH M. SIEGEL, SIEGEL & CALLAGHAN, P.A., 1500 K STREET NW SUITE 300, WASHINGTON, DC, 20005
  • Context: Internal transfer from inventors to original assignee.

• 2018-05-18 (executed) / recorded 2018-06-05 — Reel 043064/0002

  • Conveyance: Change of Name
  • Assignor: SCA HYGIENE PRODUCTS AKTIEBOLAG
  • Assignee: ESSITY HYGIENE AND HEALTH AKTIEBOLAG
  • Correspondent: ELIZABETH A. GARDNER, S.C. JOHNSON & SON, INC., 1525 HOWE STREET, RACINE, WISCONSIN, 53403
  • Context: Corporate name change following a spin-off.

Timeline diagram

timeline
    title Ownership of US 9308138
    2011 : Filed by SCA Hygiene Products AB
    2014 : Assigned to SCA Hygiene Products AB from inventors
    2016 : Issued to SCA Hygiene Products AB
    2018 : Name change to Essity Hygiene and Health AB

NPE / troll-pattern signals

1. Shell-entity transfer — not present. The transfers are between operating companies or a name change.
2. Known asserter in the chain — not present. SCA Hygiene Products AB and Essity Hygiene and Health AB are operating companies.
3. Repeat correspondent across the chain — not present. Different correspondents are listed for the two recorded events.
4. Cascading transfers — not present. Only two recorded events are present, spanning multiple years.
5. Pre-litigation transfer — unclear. While litigation is noted on Google Patents, the exact filing date of the first suit is not provided in the prompt to compare against the assignment dates.
6. Bankruptcy fire-sale — not present. SCA Hygiene Products AB and Essity Hygiene and Health AB remain active operating companies.
7. Privateering — not present. No evidence of privateering.
8. Defensive aggregator (anti-NPE) — not present. The chain ends with an operating company, Essity Hygiene and Health AB.

Verdict

Operating-company assertion The patent was assigned from the inventors to SCA Hygiene Products AB (Reel 031268/0500, recorded 2014-01-28) and subsequently transferred to Essity Hygiene and Health AB via a change of name (Reel 043064/0002, recorded 2018-06-05). Both are large operating companies known for manufacturing hygiene products. There are no clear signals of NPE involvement in the recorded assignment chain.

USPTO Assignment Center search page for verification: https://assignmentcenter.uspto.gov/patent/index.html?cn=9308138

I'll research the prior art citations for US Patent 9308138. Let me search multiple sources.

Let me gather more detail on the specific cited references and their full citations.

Prior-Art Analysis — US Patent 9,308,138 B2 ("Absorbent article having intake structure")

Scope note / methodology. This section builds on the previously generated Obviousness analysis and PTAB sections rather than repeating them. It treats the full patent text (provided in the task) and the Google Patents / Justia record as authoritative for the list of references cited on the face of US 9,308,138 ("the '138 patent"). Where I could not verify a reference's title or disclosure from the sources retrieved, I say so explicitly — I do not fabricate reference content.

Two important limitations on the §102 conclusions below:

1. The '138 patent text itself only expressly discusses one cited reference (WO 2009/105000). The remainder are citations of record; I have verified numbers and dates, but not the full disclosure of each document.
2. Anticipation under 35 U.S.C. §102 requires a single reference to disclose every limitation of a claim, arranged as in the claim. On the record available, no single cited reference appears to anticipate independent claim 1; several are better characterized as §103 combination art (consistent with the earlier Obviousness section). Where a reference is a plausible §102 candidate on particular limitations only, I label it as such.

1. The patent's own §102 "target": WO 2009/105000

What the '138 patent says it discloses (authoritative here): "a laminate fibrous web having recesses with a diminishing cross-sectional area in a thickness direction of the web … can be used as a fluid intake material … taught to improve fluid flow through the web."

§102 assessment: This is the single most material reference. It is the closest prior art to the "fluid flow control structure" (FFCS) of claim 1 — it teaches a fibrous intake web with tapering/thickness-direction recesses, i.e. the perforated, diminishing-aperture concept. However, on the record available, it does not appear to disclose: (a) the FFCS being a layered structure comprising a non-perforated fibrous polymeric layer and a first perforated polymeric layer; (b) a first absorbent layer with a closed-periphery through-opening; (c) a second absorbent layer between the FFCS and backsheet; or (d) the topsheet-in-direct-contact-through-the-opening limitation. Accordingly, WO 2009/105000 is strong §103 art for the intake web but is unlikely to anticipate claim 1 on its face. It is the reference the patentee pre-emptively distinguished, so it is the reference an invalidity theory should lead with (see the earlier PTAB section — this is precisely the role "Nakazawa" played as EX1008 in IPR2024-01487).

2. U.S. Patent documents cited (all confirmed from the Justia "Referenced Cited" list)

2a. References with confirmed titles/subject matter

Cross-reference to the earlier PTAB section: The IPR record shows EX1006 = Glaug (US 6,455,753, a reference already of record in the '138 patent) and EX1008 = Nakazawa. This means the most probative prior-art combination in IPR2024-01487 drew directly from the '138 patent's own cited-art list. Any §102/§103 analysis should therefore start with US 6,455,753.

2b. U.S. patent documents cited — numbers/dates confirmed, titles NOT verified here

The following were retrieved from the Justia "Referenced Cited" list. I did not independently confirm their titles or disclosures in the sources retrieved, so any §102 characterization would be speculative. They are listed for completeness and should be pulled and read from the USPTO/Google Patents records before being asserted.

2c. U.S. Patent Application Publications cited

3. Foreign patent documents cited (dates as listed on the face of '138; contents not verified)

Truncation caveat: The Justia "Referenced Cited" foreign list is cut off after WO-01/72251 in the retrieved data; there may be one or more additional WO references (including confirmatory entry for WO 2009/105000) not shown. Verify the complete list against the Google Patents "Patent Citations" panel at https://patents.google.com/patent/US9308138/en.

4. Most-relevant prior art — ranked, with §102 hypotheses

1. WO 2009/105000 A1 — Primary reference on the FFCS/intake web. Closest to claim-element "layered structure," but no single-reference disclosure of the full claim-1 combination → §103 lead, weak §102.
2. US 6,455,753 (Glaug) — Primary reference on the topsheet-to-core acquisition member. Confirmed as the IPR's EX1006. Its acquisition system sits between topsheet and core (not through a closed-periphery opening in a first absorbent layer), so it reads on the "fluid flow control / acquisition" element but not the whole claim → §103.
3. US 6,492,574 (Bednarz) — Center-fill/central intake + wicking barrier. Relevant to the central wetting-area/opening concept; §102 only if it discloses a fully-surrounded opening through an upper layer communicating directly with an intake structure.
4. US 4,988,344 / US 4,988,345 (Reising) — Multi-layer, rapid-acquisition cores. Background/§103 art on multi-layer cores and acquisition rate.
5. WO 01/72251 — Apertured/co-apertured hygienic products. §103 art on the perforated polymeric layer.
6. Remaining U.S. and foreign citations — of record but unverified; each must be read before any §102 assertion.

Bottom line on anticipation: Based on the sources retrievable here, the cited art supports an obviousness (§103) attack far more than a strict §102 anticipation of claim 1. To sustain a §102 theory, a challenger would need to find a single reference disclosing all of: (i) a first absorbent layer with a through-opening of closed periphery; (ii) an FFCS as a layered non-perforated-fibrous + perforated-polymeric structure; (iii) a second absorbent layer between the FFCS and the backsheet; (iv) the opening along the longitudinal center line; and (v) topsheet in direct contact with the FFCS via the opening. US 6,455,753 (Glaug) is the most promising single candidate to test against that full matrix, and it is already the reference of record driving IPR2024-01487.

5. Cautions / verification steps

• Confirm every number against USPTO PatentCenter (https://patentcenter.uspto.gov) and the Google Patents citation panel (https://patents.google.com/patent/US9308138/en); the Justia entry (https://patents.justia.com/patent/9308138) supplied the core list but was truncated.
• Titles for items in §2b and §2c and the contents of all foreign citations in §3 were not verified in the retrieved sources and must not be relied upon without reading the documents.
• Cross-reference flag (not a contradiction): the earlier Patent Summary reports the abstract's basis-weight range as "50 g/m² to 100 g/m²." The full patent text's Summary section recites "50 g/m² to 150 g/m², or 60–100 g/m²," while the abstract and claim 2 recites "60–100 g/m²" (claim 2). When citing basis weight, use claim 2 ("from 60 g/m² to 100 g/m²") as the claim-language anchor and note the Summary's broader "50–150" recitation.
• No evidence was found that any single cited reference anticipates claim 1; treat all §102 hit-list entries above as hypotheses requiring the reference's full text before assertion.

Obviousness Analysis of US Patent 9308138 under 35 U.S.C. § 103

This analysis evaluates the obviousness of US Patent 9308138 (the '138 patent) based on the provided patent text, specifically considering International Publication WO 2009/105000 ("WO '000") as primary prior art and general knowledge in the field of absorbent articles as described within the '138 patent's background and definitions.

The '138 patent addresses known problems in absorbent articles, such as incontinence shields and sanitary napkins, including side leakage and insufficient intake capacity for sudden gushes of fluid. The invention proposes an absorbent article design to overcome these issues.

Independent Claim 1 Analysis:

Claim 1 of US9308138 describes an absorbent article comprising:

1. A fluid permeable topsheet, a fluid impermeable backsheet, and an absorbent core enclosed between them.
2. The absorbent core includes a first absorbent layer having an opening that passes completely through it, surrounded by a closed periphery of the first absorbent layer.
3. A fluid flow control structure (FFCS) is arranged between the first absorbent layer and the backsheet.
4. A second absorbent layer is arranged between the FFCS and the backsheet.
5. The FFCS is a layered structure comprising a non-perforated fibrous polymeric layer and a first perforated polymeric layer.
6. The opening extends along a longitudinal center line of the absorbent article.
7. The fluid permeable topsheet is in direct contact with the FFCS via the opening.

Prior Art WO 2009/105000 and General Knowledge:

WO 2009/105000 discloses a "laminate fibrous web having recesses with a diminishing cross-sectional area in a thickness direction of the web." This web "can be used as a fluid intake material" and "is taught to improve fluid flow through the web." The '138 patent itself acknowledges that this prior art attempts to "alleviate the side leakage problem to some extent."

General knowledge in the art, as described in the '138 patent's "Definitions" and "Background" sections, includes:

• Absorbent articles typically comprise a fluid permeable topsheet, a fluid impermeable backsheet, and an absorbent core.
• Absorbent cores can have one or more layers, such as cellulose fluff pulp or superabsorbents, and may include multiple absorbent layers (e.g., a first and second absorbent layer).
• The concept of openings in absorbent layers for fluid acquisition is known, with "one or more openings" of "any suitable shape" being contemplated.
• Polymeric layers and perforated materials are known components in absorbent articles, as indicated by the "Prior art keywords."

Obviousness Argument:

A person having ordinary skill in the art (POSITA) at the time of the invention (priority date June 28, 2011) would have been motivated to combine the teachings of WO 2009/105000 with general knowledge of absorbent article design to further improve fluid intake capacity and reduce side leakage, which were acknowledged problems.

1. Basic Absorbent Article Structure: The overall structure of an absorbent article comprising a topsheet, backsheet, and an absorbent core is fundamental and explicitly stated as known in the '138 patent.
2. Multi-layer Absorbent Core with Opening: The concept of an absorbent core with multiple layers (e.g., first and second absorbent layers) is conventional, as is the idea of incorporating an opening in an upper absorbent layer to facilitate fluid transfer to a lower layer.
3. Fluid Flow Control Structure (FFCS): WO 2009/105000 teaches a "laminate fibrous web having recesses" as a fluid intake material designed to "improve fluid flow." A POSITA, seeking to implement such a material within an absorbent article, would find it obvious to construct this "laminate fibrous web" using known polymeric materials. Given the "Prior art keywords" of "polymeric layer" and "perforated," it would be an obvious design choice to form the FFCS as a layered structure incorporating a non-perforated fibrous polymeric layer (to provide bulk and pathways) and a first perforated polymeric layer (to create openings or recesses for fluid intake and distribution).
4. Arrangement of Layers: The placement of the FFCS between the first absorbent layer and the backsheet, with a second absorbent layer below the FFCS, represents a logical optimization for fluid management. This arrangement allows fluid to quickly pass through the upper layers, enter the high-capacity intake structure (FFCS), and then be distributed to a storage layer (second absorbent layer).
5. Opening along a Longitudinal Center Line: Placing the opening in the first absorbent layer along the longitudinal centerline is a common and logical design choice for an intake zone in articles worn in the crotch, where fluid insults typically occur.
6. Direct Contact of Topsheet with FFCS via Opening: To maximize the effectiveness of the fluid intake material described in WO 2009/105000, a POSITA would be motivated to ensure a direct and unimpeded path for fluid. Allowing the topsheet to be in direct contact with the FFCS through the opening in the first absorbent layer is an obvious engineering solution to funnel fluid efficiently into the intake structure, thereby addressing the problem of slow intake and surface wetness.

Motivation to Combine:

The motivation to combine these elements is clearly articulated in the '138 patent itself: to address the persistent problems of side leakage and insufficient intake capacity in absorbent articles. WO 2009/105000 provided a known solution for improving fluid flow through an intake material. A POSITA would have a strong motivation to integrate this intake material into a standard absorbent article configuration, employing known layering and aperture techniques, to enhance the overall fluid handling performance and leakage security of the article. The specific arrangement of the opening, direct contact of the topsheet, and the layered construction of the FFCS using perforated and non-perforated polymeric materials are all straightforward modifications and combinations aimed at achieving the benefits taught by WO 2009/105000 within a practical absorbent article design.

Truncated Claim 17:

The provided text for Claim 17 is truncated, stating "17. The absorbent article according to claim 9, wherein the second perforated polymeric l". Without the full text of Claim 17, a comprehensive obviousness analysis for this specific claim cannot be provided.