Ex Parte Doucet et al

Patent Trial and Appeal Board

Nov 20, 2013

12084159 (P.T.A.B. Nov. 20, 2013)

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.
12/084,159 04/25/2008 Eric Doucet GSQZ 200096US01 5380
27885 7590 11/20/2013
FAY SHARPE LLP
1228 Euclid Avenue, 5th Floor
The Halle Building
Cleveland, OH 44115
EXAMINER
GRANO, ERNESTO ARTURIO
ART UNIT PAPER NUMBER
3788
MAIL DATE DELIVERY MODE
11/20/2013 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 ERIC DOUCET and CORINNE DOUCET
____________________

Appeal 2011-011066
Application 12/084,159
Technology Center 3700
____________________

Before: JOHN C. KERINS, NEIL T. POWELL, and
JEREMY M. PLENZLER, Administrative Patent Judges.

POWELL, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
3, 5, 6, and 8-17. We have jurisdiction under 35 U.S.C. § 6(b). An oral
hearing in accordance with 37 C.F.R. § 41.47 was held on November 5,
2013.
We AFFIRM-IN-PART.

THE CLAIMED SUBJECT MATTER
Independent claim 1, reproduced below, is illustrative of the appealed
subject matter.
1. A secure package for drugs, comprising:
a case, a blister, and a resilient biasing system;
wherein the blister includes a cellular packing card for
dispensing medicinal tablets;
wherein the blister includes a transparent covering
defining at least a cell closed by a frangible cover, in order to
imprison one of the medicinal tablets;
wherein the blister includes a grip permitting the user to
displace the blister;
wherein the resilient biasing system is an independent
element which is made by a stirrup made of deformable plastic;
and
wherein a wall defining a bottom of the case, includes at
least one hole allowing dispensing of the tablets when the
blister is in its position giving access to the tablets, such that to
access the tablets the user must carry out two simultaneous
actions, such that as soon as one of the actions is interrupted the
access is rendered impossible.

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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Jordt US 3,324,996 June 13, 1967
Tannenbaum US 5,150,793 Sept. 29, 1992
Paliotta US 6,848,580 B2 Feb. 1, 2005
Toth US 2006/0138145 A1 June 29, 2006

REJECTIONS
Appellants seek our review of the following rejections.
I. Claims 1, 2, and 8-10 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Tannenbaum and Toth.
II. Claim 3 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Tannenbaum, Toth, and Paliotta.
III. Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Tannenbaum, Toth, and Jordt.
IV. Claims 11, 13, and 14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Tannenbaum and Toth.
V. Claims 12 and 15 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Tannenbaum, Toth, and Paliotta.
VI. Claim 16 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Tannenbaum and Toth.
VII. Claim 17 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Tannenbaum, Toth, and Paliotta.

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ANALYSIS
Claims 1, 2, and 9-16
The Examiner finds that Tannenbaum discloses a secure package
having most of the limitations of claim 1, including a resilient biasing
system in the form of a spring member 52. Ans. 4. The Examiner finds that
Toth’s spring member 30 constitutes a resilient biasing system that “is an
independent element which is made by a stirrup made of deformable
plastic,” as required by claim 1. Id. at 5. The Examiner concludes that it
would have been obvious to replace Tannenbaum’s spring member 52 with
Toth’s spring member 30 “to increase resilience for allowing the biasing
system to resume its approximate original shape when a force is removed.”
Id.
Appellants argue that Toth’s spring member 30 does not constitute an
independent element because it is integral with Toth’s slidable inner closure
13. App. Br. 10. In response, the Examiner asserts that the broadest
reasonable interpretation of the claim language “independent element”
requires only that the resilient biasing system have a different function, not
that the element is not integral. Ans. 14-15. The Examiner also indicates
that it would have been obvious to separate Toth’s spring 30 from other
components, such that it would not be integral. Id. at 15.
Appellants do not point to any portion of the Specification as
explicitly or implicitly defining “independent element,” nor do Appellants
otherwise provide any evidence or a specific reason to believe that the
broadest reasonable interpretation of the claim language would exclude a
resilient biasing system that is integral. Nor do Appellants provide any
evidence or a specific reason to doubt that it would have been obvious to
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separate Toth’s spring 30 from other components, as asserted by the
Examiner. Accordingly, Appellants’ vague attorney argument does not
apprise us of error in the Examiner’s determination that it would have been
obvious to modify Tannenbaum’s secure package in a manner that would
meet the claim 1 limitation that the resilient biasing system “is an
independent element.”
Appellants also argue that Toth’s spring 30 does not constitute a
“stirrup,” as recited claim 1. App. Br. 10. The Examiner responds that
spring 30 has a curved shape like a stirrup. Ans. 14-15. Here again,
Appellants do not point to any portion of the Specification as explicitly or
implicitly defining the term “stirrup,” nor do Appellants otherwise point to
any evidence or specific reason to doubt the Examiner’s finding that Toth’s
spring 30 constitutes a stirrup. Accordingly, Appellants’ vague attorney
argument does not apprise us of error in the Examiner’s finding that Toth’s
spring is made by a stirrup.
In the Reply Brief, Appellants advance the additional argument that
Toth’s spring member 30 serves a different purpose and provides a different
result in a different way than Tannenbaum’s spring member 52. Reply Br.
2-3. Specifically, Appellants argue that Toth’s spring 30 biases a safety lock
to a closed position, rather than biasing a sliding closure. Id. This argument
does not apprise us of error because we do not believe that a person of
ordinary skill in the art would have viewed the function of Toth’s spring
member 30 as fundamentally different from that of Tannenbaum’s spring
member 52. Just as Tannenbaum’s spring member 52 serves to bias a
sliding member, Toth’s spring member 30 serves to bias a sliding member.
Specifically, Toth’s spring member 30 serves to bias overcap 11 upward.
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See, e.g., Toth, ¶¶ [0091], [0098]. While Tannenbaum and Toth disclose
slightly different applications of the fundamental biasing function of their
spring members 52, 30, we do not believe this indicates any error in the
Examiner’s determination that it would have been obvious to modify
Tannenbaum’s system to use Toth’s spring member 30.
In the Reply Brief, Appellants also advance the additional argument
that “an effective spring force is unlikely to be attained” by modifying
Tannenbaum’s system to include Toth’s spring member 30. Reply Br. 3. In
view of Toth’s disclosure that the resiliency of its spring member 30 urges
overcap 11 upwardly (Toth, ¶¶ [0091], [0098]), we do not agree with
Appellants’ speculative attorney argument that the spring member 30 might
not provide effective spring force.
For the foregoing reasons, Appellants do not apprise us of error in the
rejection of claim 1. Appellants do not argue claims 2, 9, and 10 separately
from claim 1. Accordingly, Appellants do not apprise us of error in the
rejection of claims 1, 2, 9, and 10.
Regarding claims 11-15, Appellants again dispute the Examiner’s
position that Toth discloses a resilient biasing system that is independent,
and a stirrup. See App. Br. 12-14; Reply Br. 4; Ans. 9, 10, 12, 17-18. For
the reasons discussed above in connection with claim 1, these arguments do
not apprise us of error.
Regarding claim 14, Appellants also argue that “[i]n Toth, the spring
30 is again not saddle-shaped.” App. Br. 14. This argument does not
apprise us of error because it is not commensurate in scope with claim 14,
which does not require a “saddle-shaped” resilient biasing system.
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Regarding claim 16, Appellants also argue that Tannenbaum does not
meet the claim limitation that “to access the tablet, the user must carry out
two simultaneous actions.” App. Br. 14-15. In support of this contention,
Appellants state that “in Tannenbaum, one can merely place one’s thumb or
other finger on one of the blisters and press downward and longitudinally,
moving the tablet into alignment with the hole 36 in the base 34 in a single,
fluid motion.” Id. This argument does not apprise us of error because
pressing downward constitutes one action and pressing longitudinally
constitutes a second action, regardless of whether these actions occur
simultaneously in a single, fluid motion. Thus, even if we accept
Appellants’ assertion that one could use Tannenbaum’s package to access a
tablet by pressing downward and longitudinally simultaneously, this meets
the claim limitation that “the user must carry out two simultaneous actions.”
Appellants do not point to any portion of the Specification or any other
evidence that would suggest the broadest reasonable interpretation of the
claim language excludes a construction that allows tablet access by
simultaneously pressing downward and longitudinally.
For the foregoing reasons, we sustain the rejections of claims 1, 2, and
9-16.

Claims 3, 12, 15, and 17
The Examiner finds that Tannenbaum, Toth, and Paliotta do not
disclose the claim 3 limitation “wherein the grip includes a hole defined in a
wall of the blister.” Ans. 6. Addressing this, the Examiner determines that
It would have been an obvious matter of design choice to
include a hole grip, since it appears that the invention
would perform equally well with Paliotta’s straight edge
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grip or with the curved edge grip of the presently claimed
hole because providing an edge is what allows for a grip
to move the blister.
Id. at 6-7.
Appellants argue that the Examiner relies on Paliotta as disclosing the
limitations of claim 3, and that Paliotta does not disclose a hole in its slide
card 100. App. Br. 10; Reply Br. 3. Appellants also argue that the cited
references do not disclose the advantage identified by the Examiner that
“providing an edge is what allows for a grip to move the blister.” Reply Br.
2.
Contrary to Appellants’ argument, the Examiner does not rely on
Paliotta as disclosing a hole in a blister. See Ans. 6; App. Br. 10. Instead,
the Examiner provides sound reasoning that it would have been obvious to
add a hole to a blister for gripping purposes, even though the cited
references do not explicitly disclose the claimed hole. Appellants’
observation that the cited references do not explicitly disclose the advantage
noted by the Examiner – that “providing an edge is what allows for a grip to
move the blister” – also fails to apprise us of error. An obviousness analysis
“need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Accordingly,
Appellants’ arguments do not apprise us of error in the rejection of claim 3.
In the dispute over the rejections of claims 12, 15, and 17, the
Examiner and Appellants advance the same substantive contentions as raised
in connection with claim 3 regarding whether it would have been obvious to
add a hole to Tannenbaum’s blister. See App. Br. 13-15; Reply Br. 4; Ans.
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11, 13-14, 17-18. For the reasons discussed above, these arguments do not
apprise us of error in the rejections of claims 12, 15, and 17. Accordingly,
we sustain the rejection of claims 3, 12, 15, and 17.

Claims 5 and 6
The Examiner finds that Tannenbaum and Toth do not disclose the
claim 5 limitation that the case includes “an articulated lid section.” Ans. 7.
Addressing this limitation, the Examiner finds that Jordt discloses a case 10
with a box part 11 and an articulated lid section 20. Ans. 7. The Examiner
concludes that “[i]t would have been obvious to one of ordinary skill in the
art at the time of the invention to modify Tannenbaum in view of Jordt in
order to prevent damage to items being stored within the case.” Id.
Appellants argue that if one added Jordt’s lid to Tannenbaum’s
package, Jordt’s lid would not operate to replace blisters in the same way it
does with Jordt’s package. App. Br. 11. Indeed, Appellants argue, the cams
21 on Jordt’s lid might damage the tablets in Tannenbaum’s package. Id.
Accordingly, Appellants argue, “[t]he lid and cam arrangement of Jordt
would be ineffective for its intended purpose of inserting new table supply
sheets in the construction of Tannenbaum.” Id.
Appellants’ arguments do not apprise us of error because the
Examiner does not suggest that it would have been obvious to modify
Tannenbaum’s system to include the specific configuration of lid disclosed
by Jordt to serve every purpose that Jordt discloses for its lid. Instead, the
Examiner relies on Jordt only as having rendered it obvious to add a lid to
Tannenbaum’s box. See Ans. 7, 15-16. As the Examiner correctly notes,
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[T]he test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the
claimed invention must be expressly suggested in any
one or all of the references. Rather, the test is what the
combined teachings of the references would have
suggested to those of ordinary skill in the art.
Ans. 15-16 (citing In re Keller, 642 F.2d 413 (CCPA 1981)).
Appellants’ assertion that the proposed modification would not meet
the intended use of Jordt does not apprise us of error because the Examiner
proposes that it would have been obvious to modify Tannenbaum’s
apparatus, not Jordt’s. Appellants have provided no reason to believe that
adding a lid to Tannenbaum’s device would have hindered accomplishing
Tannenbaum’s intended purpose.
For the foregoing reasons, Appellants’ arguments do not apprise us of
error in the rejection of claim 5. Appellants do not argue claim 6 separately
from claim 5. See App. Br. 11-12. Accordingly, we sustain the rejection of
claims 5 and 6.

Claim 8
Claim 8 depends from claim 1, which requires that “the blister
includes a transparent covering defining at least a cell closed by a frangible
cover.” App. Br. 17, Claims Appendix. Claim 8 adds that “the blister
includes at least a rigid lower sheet defining holes aligned with the cells of
the blister and the frangible cover covering the holes.” Id. at 18.
The Examiner finds that Tannenbaum discloses these limitations.
Specifically, the Examiner states that Tannenbaum’s “blister 14 includes a
transparent covering 20 defining at least one cell 22 closed by a frangible
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cover 18” (Ans. 4), and that “the blister 14 includes at least a rigid lower
sheet 16 defining holes aligned with the at least one cells of the blister 14
and the frangible cover covering the hole” (Ans. 5).
Appellants argue that Tannenbaum does not meet the claim limitation
because Tannenbaum’s blister includes only one sheet other than the sheet
16 forming the blisters, specifically a rupturable sheet 24 bonded directly to
the sheet 16 that forms the blisters. App. Br. 12. With only these two
sheets, Appellants argue, Tannenbaum does not have the claimed rigid lower
sheet. Id. The Examiner responds that “the flat part 16 of the blister 14 is . .
. clearly a rigid sheet.” Ans. 16.
This does not address the principal thrust of Appellants’ argument.
Appellants’ argument does not appear to relate primarily to whether
reference number 16 identifies a rigid sheet. Instead, Appellants’ argument
principally suggests that Tannenbaum’s blister does not include each of the
three claimed structures of a “transparent covering,” a “frangible cover,” and
a “rigid lower sheet.” Consistent with Appellants’ argument, the Examiner
does not clearly explain how the construction of Tannenbaum’s blister meets
these three structures of the claim. As noted above, the Examiner points to
Tannenbaum’s reference numeral 20 as identifying the transparent covering,
to reference numeral 18 as identifying the frangible cover, and to reference
numeral 16 as identifying the rigid lower sheet. These reference numerals
all point to one monolithic sheet. Reference numeral 16 points to the sheet
generally. Reference numerals 18 and 20 refer to first and second sides,
respectively, of the sheet 16. Tannenbaum, col. 2, l. 56-col. 3, l. 7. Without
further explanation from the Examiner regarding how this single sheet 16
meets the claim, Appellants’ argument convinces us that the Examiner has
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not established by a preponderance of the evidence that Tannenbaum’s
blister includes the claimed “rigid lower sheet” in combination with the
claimed “transparent covering” and “frangible cover.” Accordingly, we do
not sustain the rejection of claim 8.

DECISION
We affirm the Examiner’s decision rejecting claims 1, 2, 9, and 10
under 35 U.S.C. § 103(a) as unpatentable over Tannenbaum and Toth.
We reverse the Examiner’s decision rejecting claim 8 under 35 U.S.C.
§ 103(a) as unpatentable over Tannenbaum and Toth.
We affirm the Examiner’s decision rejecting claim 3 under 35 U.S.C.
§ 103(a) as unpatentable over Tannenbaum, Toth, and Paliotta.
We affirm the Examiner’s decision rejecting claims 5 and 6 under 35
U.S.C. § 103(a) as unpatentable over Tannenbaum, Toth, and Jordt.
We affirm the Examiner’s decision rejecting claims 11, 13, and 14
under 35 U.S.C. § 103(a) as unpatentable over Tannenbaum and Toth.
We affirm the Examiner’s decision rejecting claims 12 and 15 under
35 U.S.C. § 103(a) as unpatentable over Tannenbaum, Toth, and Paliotta.
We affirm the Examiner’s decision rejecting claim 16 under 35 U.S.C.
§ 103(a) as unpatentable over Tannenbaum and Toth.
We affirm the Examiner’s decision rejecting claim 17 under 35 U.S.C.
§ 103(a) as unpatentable over Tannenbaum, Toth, and Paliotta.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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