Ex Parte Craig et al

Patent Trials and Appeals Board

Jun 27, 2019

13604913 - (D) (P.T.A.B. Jun. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/604,913 09/06/2012
27752 7590 07/01/2019
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Stephanie Tych Craig
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
12237 8334
EXAMINER
VAN BUSKIRK, JAMES M
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
07/01/2019 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 STEPHANIE TYCH CRAIG, JOHN B.
MAITREJEAN II, and JAMES RADLEY
Appeal 2018-008841
Application 13/604,913
Technology Center 3700
Before CHARLES N. GREENHUT, JAMES P. CALVE, and
BRETT C. MARTIN, Administrative Patent Judges.
MARTIN, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2018-008841
Application 13/604,913
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner's
rejection of claims 4 and 11, the only pending claims. We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM.
THE INVENTION
Appellants' claims are directed generally "to tooth whitening strip
articles and improved communication to consumers on the packaging
therefor[]." Spec. col. 1, 11. 9-10. Claim 4, reproduced below, is illustrative
of the claimed subject matter:
4. An array of a brand of peroxide tooth whitening products,
said array comprising first, second, third and fourth packages for
said peroxide tooth whitening products, said products having a
range of whitening powers, said packages having indicia
compnsmg:
a) a power communication system disposed on each of the
first, second, third and fourth packages, the power
communication system comprising a brand indicator and a line-
up indicator, said line-up indicator comprising visual indicia and
narrative indicia; and
b) a power specific indicator disposed on each of said
packages;
wherein the line-up indicator and power specific
indicator associate said packages with a corresponding
first, second, third and fourth whitening power,
respectively, to enable a consumer to identify the
appropriate package to select from said array; and
wherein the narrative indicia comprises first indicia
on said first package, second indicia on said second
package, third indicia on said third package, and fourth
indicia on said fourth package, the first indicia
corresponding to a first whitening power, the second
indicia corresponding to a second whitening power, the
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Appeal 2018-008841
Application 13/604,913
third indicia corresponding to a third whitening power, and
the fourth indicia corresponding to a fourth whitening
power, the first, second, third and fourth indicia being
visibly different; and
wherein the first indicia depicts a first Arabic numeral
corresponding to the first whitening power, the second indicia
depicts a second Arabic numeral corresponding to the second
whitening power, the third indicia depicts a third Arabic numeral
corresponding to the third whitening power and the fourth indicia
depicts a fourth Arabic numeral corresponding to the fourth
whitening power.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Warren US 2007/0251851 Al Nov. 1, 2007
Crest Whitestrips Gentle, www.3dwhite.com/crest-products/3D-white-
whitestripes-gentle-routine.aspx (via the Wayback Machine web site),
hereinafter "Gentle."
Crest Whitestrips Professional, www.3dwhite.com/crest-products/3D-
white-whitestrips-professional-effects.aspx (via the Wayback Machine web
site), hereinafter "Professional."
Crest Whitestrips Vivid, www.3dwhite.com/crest-products/3D-white-
whitestrips-advanced-vivid.aspx (via the Wayback Machine web site),
hereinafter "Vivid."
Crest Whitestrips Advanced Vivid, www.3dwhite.com/crest-
products/3D-white-whitestripes-advanced-vivid.aspx (via the Wayback
Machine web site), hereinafter "Advanced."
Animated-Teeth.com, www.animated-teeth.com/whitening strips/al
teeth whitening.htm (via the Wayback Machine web site), "Peroxide."
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Appeal 2018-008841
Application 13/604,913
Makeup Alley
www.makeupalley.com/product/ showreview.asp/I temid= 154131 /Crest-3 D-
Whitestrips-intensive-Professional-Effects/Crest/Other.
REJECTIONS
The Examiner made the following rejections:
Claim 4 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gentle, Professional, Vivid, Advanced, Peroxide, and
Warren. Final Act. 5.
Claim 11 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gentle, Professional, Vivid, Advanced, Warren, and
Makeup Alley. Final Act. 8.
ANALYSIS
Appellants argue that the Examiner's rejection is improper due to the
fact that Warren's specific products are too dissimilar to tooth-whitening
products for the combination to be valid. See Br. 4-9. We first note that the
Examiner uses Warren only for the general teaching of a product array
having varying indicia to communicate to a user the different types of
products within the array. Final Act. 7. The Examiner also points out that
"Warren teaches that, 'While the foregoing detailed description relates to a
particular product group cleansing wipes and multiple stages of product
within that group, the concepts may be applied to virtually any product." Id.
(citing Warren ,-J 53).
Furthermore, the various Crest references already hint at the product
array in that each package depicted in the references includes the numerals 1
through 5 with each individual package highlighting one of the numerals to
indicate the strength of that product within the array. The Examiner only
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Appeal 2018-008841
Application 13/604,913
utilizes Warren for the actual placement together of the individual products
within the array. As such, the similarity between Warren's cleaning wipes
and Appellants' tooth-whitening products is of little significance. Also,
Warren, by its own disclosure, acknowledges that such an array is applicable
"to virtually any product." Warren ,-J 53. The relevant feature gleaned from
Warren is merely the array of differing products with indicia of some kind to
differentiate the products within the array. Warren's teaching is sufficient
for this aspect of the claims. Accordingly, we sustain the Examiner's
rejection of claims 4 and 11, which Appellant does not separately argue.
DECISION
For the above reasons, we AFFIRM the Examiner's decision to reject
claims 4 and 11.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED
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