Ex Parte Hinkle et alDownload PDFBoard of Patent Appeals and InterferencesJul 23, 201210609851 (B.P.A.I. Jul. 23, 2012) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte TERRY L. HINKLE, RONNIE R. SCHKADE, and WILLIAM N. McDUFFIE ____________________ Appeal 2010-002824 Application 10/609,851 Technology Center 3600 ____________________ Before: JENNIFER D. BAHR, WILLIAM V. SAINDON, and MICHAEL J. FITZPATRICK, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-002824 Application 10/609,851 2 STATEMENT OF THE CASE Terry L. Hinkle et al. (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1-9 and 37. The Examiner withdrew claims 10-36 and 38 from consideration. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The Claimed Subject Matter Claim 1, reproduced below, is illustrative of the claimed subject matter.1 1. A device for dispensing a single cleanroom wiper comprising: a housing; a loading assembly disposed within the housing; an access portal disposed within the housing that allows a user access to the single cleanroom wiper but doesn't allow access to more than one of the single cleanroom wipers simultaneously; and a retrieval assembly disposed within the housing, adapted to grasp the single cleanroom wiper from a stack of cleanroom wipers that are stored within the housing and to move the single cleanroom wiper into proximity with the access portal; wherein the stack of clean room wipers is inaccessible to the user. Evidence The Examiner relied on the following evidence in rejecting the claims on appeal: 1 Claim 37, the only other independent claim involved in this appeal, is directed to a “method for providing singular dispensing of cleanroom wipers” and comprises the steps of providing the elements of the device called for in claim 1, as well as steps of loading a stack of the cleanroom wipers into the housing via the loading assembly, actuating the retrieval assembly to retrieve the single wiper, and removing the single wiper from the housing through the access portal, Appeal 2010-002824 Application 10/609,851 3 Thomasma Kienel Bonk Paley US 3,152,722 US 3,251,448 US 3,986,479 US 6,062,381 Oct. 13, 1964 May 17, 1966 Oct. 19, 1976 May 16, 2000 Tramontina US 6,296,331 B1 Oct. 2, 2001 Vanpro Inc., http://web.archive.org/web/20030623085137/www.vanpro- inc.com/ (last visited Oct. 1, 2007) (hereinafter “Vanpro”). Rejections2 The following rejection by the Examiner under 35 U.S.C. § 102(a) is before us for review: (1) claims 1, 3, 5-7, and 9 as anticipated by Vanpro. The following rejections by the Examiner under 35 U.S.C. § 103(a) are before us for review: (2) claims 1-7, 9, and 37 as unpatentable over Vanpro; (3) claims 1, 3, 7, and 37 as unpatentable over Kienel and Paley; (4) claims 1, 3, 5, 6, and 37 as unpatentable over Thomasma and Paley; (5) claims 1, 4-6, 9, and 37 as unpatentable over Bonk and Paley; (6) claims 1-3 and 5-93 as unpatentable over Vanpro and Tramontina; (7) claims 1-3, 7, 8, and 37 as unpatentable over Kienel, Paley, and Tramontina; (8) claims 1-3, 5-8, and 374 as unpatentable over Thomasma, Paley, and Tramontina; and 2 The Examiner withdrew the rejection of claims 1-9 and 37 under 35 U.S.C. § 112, first paragraph, for lack of enablement. Ans. 4. 3 Although the Examiner’s statement of the rejection does not include claim 2, the rejection discusses claim 2. Fin. Rej. 7; Ans. 9. Thus, Appellants were clearly on notice of the Examiner’s position in rejecting claim 2. 4 Although the Examiner’s statement of the rejection does not include claims 2 and 8, the Examiner’s rejection addresses these claims. Fin. Rej. 8; Ans. 11. Thus, Appellants were clearly on notice of the Examiner’s position in rejecting claims 2 and 8. Appeal 2010-002824 Application 10/609,851 4 (9) claims 1, 2, 4-6, 8, 9, and 375 as unpatentable over Bonk, Paley, and Tramontina. OPINION Anticipation by Vanpro Appellants argue that the Examiner’s rejection of claims 1 and 37 as anticipated by Vanpro is improper because (1) the Examiner did not specify what part of the wiper dispenser is the retrieval assembly, (2) Vanpro does not teach an access portal that is a separate element from the loading assembly and that doesn’t allow access to more than a single cleanroom wiper simultaneously, and (3) Vanpro does not teach that the stack of cleanroom wipers is inaccessible to the user. Br. 18. Appellants concede that Vanpro’s “wiper dispenser is only shown in the left side of the bottom picture of the Examiner’s VanPro web page.” Br. 17. We understand the Examiner’s findings set forth on page 5 of the Answer to be directed to only that portion of the picture. See also Ans. 14 (reproducing the left side of the picture alluded to by Appellants, with annotations). The portion of the picture alluded to by Appellants showing Vanpro’s cleanroom wiper dispenser is reproduced below with the Examiner’s annotations. 5 Although the Examiner’s statement of the rejection does not include claims 2 and 8, the rejection discusses these claims. Fin. Rej. 8; Ans. 12. Thus, Appellants were clearly on notice of the Examiner’s position with respect to claims 2 and 8. App App Vanp an an box) Vanp findi trans two- hous with anno struc “retr abov right eal 2010-0 lication 10 The repr ro’s web notation b . The Exa ro shows ng is supp parent fro thirds of th ing. The Exa in the hou tation in th ture on wh ieval assem e the stack of the hou 02824 /609,851 oduction o site includ y the Boa miner, refe an access orted by V nt wall of e device, miner foun sing on the e reprodu ich we un bly.” Th of cleanr sing. App f the pictu es the Exa rd (shown rencing th portal disp anpro’s pi the housin leaving an d that Va “right fro ction of V derstand t is structur oom wiper ellants do 5 re of Vanp miner’s an on the rig e “front ri osed with cture, whi g extendin access po npro show nt corner” anpro’s pi he Examin e clearly e s through not dispu ro’s wipe notations ht side of t ght” of the in the hou ch shows g across o rtal in the s a retriev of the dev cture abov er to be re xtends wit the access te that the r dispense (in white b he picture device, f sing. Ans. an at least nly approx front right al assembl ice. Id. O e denotes ading the hin the ho portal on referenced r from oxes) and without a ound that 5. This partially imately of the y disposed ur the claimed using the front structure Appeal 2010-002824 Application 10/609,851 6 is adapted to grasp and retrieve a single wipe from the stack of wipes stored within the housing (visible through the partially transparent front wall) or otherwise explain why this structure does not satisfy the requirements of the retrieval assembly recited in claims 1 and 37. Indeed, the snapshot of the Vanpro web page submitted by Appellants as an attachment to their Remarks filed December 6, 2007 (hereinafter “Remarks”), as representative of the Vanpro reference relied upon by the Examiner6, discloses that Vanpro’s cleanroom wipe dispenser releases/dispenses “one wipe at a time.” Thus, the Examiner has a sound basis for finding that Vanpro’s cleanroom wiper dispenser assembly includes an access portal “that allows a user access to the single cleanroom wiper but doesn't allow access to more than one of the single cleanroom wipers simultaneously” and a retrieval assembly as called for in claims 1 and 37. As for a loading assembly distinct from the access portal, the Examiner found that Vanpro’s dispenser includes a cover and a space between the cover and the front wall. Ans. 5. The Examiner’s annotations in the picture reproduced above denote what the Examiner believes to be the front edge of a top cover and the top edge of the front wall, thereby defining the upper and lower edges of the loading assembly. Appellants, on the other hand, contend that a user has access to the stack of wipers from the top of the dispenser. Br. 18. In other words, Appellants assert that Vanpro’s dispenser does not have a top cover. We find that the picture of the cleanroom wiper dispenser on Vanpro’s web page is inconclusive as to whether there is or is not a cover on the top of the housing. In any event, Appellants and the Examiner agree that 6 See Remarks, p. 11 (stating “the Applicants use the attached VanPro web page as the VanPro reference herein”), Appeal 2010-002824 Application 10/609,851 7 Vanpro’s housing has structure permitting access to the inside of the housing for loading the stack of wipers therein from a location other than the access portal discussed above. Thus, the record before us establishes a sound basis for the finding that Vanpro’s dispenser includes a loading assembly disposed within the housing that is distinct from the access portal. With regard to Appellants’ third argument, the Examiner asserts that Appellants’ claims do not positively recite structure (or steps) for rendering the cleanroom wipers inaccessible to the user, and treats the claim language in question as directed to the manner of operating the device and/or desired objectives. Ans. 12-13. We agree with the Examiner’s claim construction in this regard. Aside from the access portal, discussed above, which allows a user access to the single clean room wiper but doesn't allow access to more than one of the single cleanroom wipers simultaneously, claims 1 and 37 do not positively recite structure or steps for limiting the accessibility of the cleanroom wipers to the user. Indeed, the stack of tissues in Appellants’ disclosed device and method is inaccessible to the user only if the user chooses not to open the loading assembly 206 when using the device. Likewise, Vanpro’s description of the dispenser as dispensing “one wipe at a time,” in the snapshot of Vanpro’s web page submitted by Appellants as representative of the Vanpro reference, indicates that Vanpro’s dispenser is intended to be used in such a manner that users access only the wiper that is dispensed. Thus, the record establishes a sound basis for the Examiner’s finding that Vanpro describes a device as recited in claim 1 and a method as recited in claim 37 “wherein the stack of the cleanroom wipers is inaccessible to the user.” For the above reasons, we sustain the rejection of claims 1 and 37 as anticipated by Vanpro. Appeal 2010-002824 Application 10/609,851 8 Appellants reiterate the same arguments asserted against the rejection of claim 1 in contesting the rejection of claims 5-7 and 9 as anticipated by Vanpro. See Br. 19-23. These arguments are unpersuasive for the reasons discussed above. Appellants further point out additional limitations recited in claims 5-7 and 9, and baldly assert that these features in combination with the limitations of independent claim 1 are not taught or suggested by Vanpro. Id. These vague statements do not constitute separate arguments for patentability of the dependent claims pursuant to 37 C.F.R. § 41.37(c)(1)(vii). See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that the Board had reasonably interpreted 37 C.F.R. § 41.37(c)(1)(vii) as requiring “more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art”). We sustain the rejections of dependent claims 5-7 and 9 as anticipated by Vanpro. We do not sustain the rejection of dependent claim 3 as anticipated by Vanpro. Vanpro discusses the use of metal (and other materials) generally on equipment that Vanpro sells, and specifically discloses the use of metal in end effectors, wafer handling cassettes, and disc drive components, but does not describe the use of metal on cleanroom wiper dispenser housings. Obviousness in view of Vanpro Appellants reiterate the same arguments asserted against the rejection of claims 1 and 37 as anticipated by Vanpro in contesting the rejection of claims 1-7, 9, and 37 as unpatentable over Vanpro. See Br. 23-35. These arguments are not convincing with respect to claims 1, 2, 4-7, 9, and 37 for the reasons discussed above. Appellants also point out additional features recited in the dependent claims and baldly assert that these features in combination with the limitations of independent claim 1 are not taught or Appeal 2010-002824 Application 10/609,851 9 suggested by Vanpro. As noted above, these vague statements do not constitute separate arguments for patentability of the dependent claims pursuant to 37 C.F.R. § 41.37(c)(1)(vii). We sustain the rejection of these claims as unpatentable over Vanpro. In contesting the rejection of claim 3 as unpatentable over Vanpro, Appellants additionally argue that Vanpro does not discuss the use of metal for the wiper dispenser. Br. 27. As indicated in our discussion above of the rejection of claim 3 as anticipated by Vanpro, we agree with Appellants. In rejecting claim 3 under 35 U.S.C. § 103(a) as unpatentable over Vanpro, the Examiner does not articulate any reason why it might have been obvious to modify Vanpro’s wiper dispenser to make the housing thereof from metal, and thus does not cure the deficiency in the anticipation rejection. Thus, we do not sustain the rejection of claim 3 as unpatentable over Vanpro. Obviousness in view of Vanpro and Tramontina In contesting the rejection of claims 1-3 and 5-9 as unpatentable over Vanpro and Tramontina, Appellants repeat several of the same arguments asserted against the rejections based on Vanpro alone. We find these arguments unconvincing for the reasons discussed above. Appellants additionally argue that it would not have been obvious to combine Tramontina with Vanpro because Tramontina is directed to a paper towel dispenser, rather than to a cleanroom wiper dispenser, as disclosed by Vanpro, and a person of ordinary skill in the art knows that paper towels and cleanroom wipers act differently in dispensers because of their inherently different characteristics. Br. 72. Appellants’ argument is not convincing. First, while Appellants’ Specification characterizes cleanroom wipers as being a specialized product developed for a specialized application (para. [0002]), it is not apparent from Appeal 2010-002824 Application 10/609,851 10 the criteria for cleanroom wipers set forth in paragraph [0003] and the description of material and finish features of cleanroom wipers described in paragraph [0006] of Appellants’ Specification that cleanroom wipers would act in a manner substantially differently from paper towels. Merely by way of example, the cellulosic material and nap features for absorbency of the cleanroom wipers described in Appellants’ Specification are not inconsistent with paper towels, which commonly comprise cellulosic material such as wood pulp and may be provided with nap features for absorbency, a desirable characteristic for a paper towel. Moreover, even accepting Appellants’ argument that a person of ordinary skill in the art would recognize that cleanroom wipers act differently in dispensers than do paper towels, Appellants have not adequately explained why any such differences would render the advantages of opacity and polycarbonate for dispenser housings cited by Tramontina (see col. 3, ll. 15-24) and relied upon by the Examiner (Ans. 10) any less applicable for a cleanroom wiper dispenser. We sustain the rejection of claims 1 and 37 as unpatentable over Vanpro and Tramontina. We also sustain the like rejection of dependent claims 2, 8, and 9, for which Appellants have not asserted any separate argument. See 37 C.F.R. § 41.37(c)(1)(vii) (2011) (providing that when multiple claims subject to the same ground of rejection are argued as a group by the appellant, the Board may select a single claim from the group to decide the appeal with respect to the group as to the ground of rejection on the basis of the selected claim alone). The Examiner’s rejection of claim 3, which requires that the housing comprise metal, suffers from the same deficiency as the rejections of claim 3 based on Vanpro alone. We do not sustain the rejection of claim 3 as unpatentable over Vanpro and Tramontina. Appeal 2010-002824 Application 10/609,851 11 With respect to claims 5-7, Appellants additionally argue that Vanpro and Tramontina are not combinable to arrive at the claimed invention because Tramontina is not suitable for shelf-top, tabletop, or freestanding floor use. Br. 77, 80, 83. These arguments are not convincing, because they attack Tramontina in isolation rather than in combination with Vanpro. Nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Moreover, the argument is not commensurate with the scope of claims 5-7, which simply require that the housing be formed of a size suitable for shelf-top, tabletop, or freestanding floor use. Appellants do not allege that Vanpro’s dispenser housing is of a size unsuitable for shelf-top, tabletop, or freestanding floor use. We sustain the rejection of claims 5-7 as unpatentable over Vanpro and Tramontina. Obviousness in view of Kienel and Paley We have considered all of Appellants’ arguments asserted against the rejection of claims 1, 3, 7, and 37 as unpatentable over Kienel and Paley, but we do not find them convincing. See Br. 35-43. Appellants discuss claims 1, 3, 7, and 37 under separate headings and point out different limitations recited therein. However, in discussing claims 7 and 37, Appellants merely reiterate essentially the same arguments asserted for claim 1. Appellants argue that Kienel teaches dispensing clean fabric shop towels in exchange for soiled towels, and that Kienel’s mechanical teeth (needles 244) are not capable of dispensing cleanroom wipers as described in Appellants’ Specification. Br. 36, 42. Thus, according to Appellants, Kienel does not disclose a retrieval assembly as claimed. Id. Appeal 2010-002824 Application 10/609,851 12 Appellants’ assertion that Kienel’s needles 244 would not be capable of dispensing cleanroom wipers amounts to mere attorney argument unsupported by evidence or technical reasoning, and thus is not convincing. An attorney’s arguments in a brief cannot take the place of evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nothing in the description of Appellants’ cleanroom wipers suggests that a needle-type gripper of the type disclosed by Kienel would be incapable of gripping and dispensing such wipers. In any event, to the extent that any modifications might be required to render Kienel’s gripping device suitable for gripping and dispensing cleanroom wipers, there is nothing in the record before us suggesting that such modifications would have been beyond the technical grasp of a person of ordinary skill in the art. Appellants also argue that a person of ordinary skill in the art would not use Kienel’s apparatus to dispense cleanroom wipers because of the high level of contamination created by the operation of Kienel’s apparatus. Br. 36, 42. It is not apparent from the portions of Kienel’s disclosure cited by Appellants in support of this assertion, and Appellants have not adequately explained, why this would be the case. An apparatus that accepts soiled wipers and stores them in a housing would seemingly be beneficial for cleanliness. Appellants also argue that a person of ordinary skill in the art would not combine the teachings of Kienel and Paley, because Kienel is directed to dispensing dry shop towels in exchange for soiled towels, while Paley is directed to dispensing wet wipers. Br. 37, 43. The Examiner relies on Paley only for its teachings regarding the use of wipers in semiconductor cleanrooms to maintain cleanliness. Ans. 7, 16; see also Paley, col. 1, ll. 10- 15; col. 7, ll. 24-45 (describing the use of applicators or wipers in cleaning Appeal 2010-002824 Application 10/609,851 13 surfaces in clean rooms). As pointed out by the Examiner (Ans. 16), Kienel and Paley are both directed to wiping cloths for maintaining cleanliness in work areas (Kienel, col. 1, ll. 16-19; Paley, col. 7, ll. 24-45). Armed with the knowledge that cleanroom wipers are routinely needed and used in clean rooms, a person of ordinary skill in the art would have been prompted to provide a dispenser such as the one disclosed by Kienel in such an environment, with whatever modifications, if any, might be necessary to adapt Kienel’s dispenser for use with known cleanroom wipers. Thus, we reject Appellants’ argument that it would not have been obvious to combine the teachings of Kienel and Paley as proposed by the Examiner. With respect to dependent claim 3, Appellants argue that Kienel teaches an inside wall 28 comprising metal, not a housing, as called for in claim 3. Br. 38. This argument is not convincing. We agree with the Examiner that an inside wall is part of a housing. Ans. 16. Claim 3 merely requires that the housing comprise metal, not that the entirety of the housing be made of metal. For the above reasons, we sustain the rejection of claims 1, 3, 7, and 37 as unpatentable over Kienel and Paley. Obviousness in view of Kienel, Paley, and Tramontina In addition to the arguments asserted against the combination of Kienel and Paley, which we find unconvincing for the reasons discussed above, Appellants also argue that one skilled in the art would not combine Kienel, Paley, and Tramontina because Kienel is directed to dispensing dry shop towels, Paley is directed to dispensing wet wipers, Tramontina is directed to a paper towel dispenser, and shop towels, paper towels, and cleanroom wipers act differently in dispensers because of their inherently different characteristics. Br. 90-91. Appeal 2010-002824 Application 10/609,851 14 As discussed above, it is not apparent from the criteria for cleanroom wipers set forth in paragraph [0003] and the description of material and finish features of cleanroom wipers described in paragraph [0006] of Appellants’ Specification that cleanroom wipers would act in a manner substantially differently from paper towels or shop towels. Moreover, even accepting Appellants’ argument that a person of ordinary skill in the art would recognize that cleanroom wipers act differently in dispensers than do paper towels or shop towels, Appellants have not adequately explained why any such differences would render the advantages of opacity and polycarbonate for dispenser housings cited by Tramontina (see col. 3, ll. 15- 25) and relied upon by the Examiner (Ans. 10) any less applicable for a cleanroom wiper dispenser. Appellants additionally argue that the Examiner’s proposed combination of Kienel, Paley, and Tramontina would not yield the invention recited in claim 7, because Tramontina’s apparatus is not suitable for freestanding floor use. Br. 95. This argument is not persuasive, because it attacks Tramontina in isolation rather than as combined with Kienel and Paley, and further does not address the actual language of claim 7, which recites that the device is formed of a size suitable for freestanding floor use. The Examiner found that Kienel’s housing is formed of a size suitable for freestanding floor use (Ans. 6) and relied on Tramontina only for its teachings with respect to dispenser housing materials. Appellants do not dispute that Kienel’s device is formed of a size suitable for freestanding floor use. For the above reasons, Appellants’ arguments do not convince us the Examiner erred in rejecting claims 1-3, 7, 8, and 37 as unpatentable over Kienel, Paley, and Tramontina. We sustain the rejection. Appeal 2010-002824 Application 10/609,851 15 Obviousness in view of Thomasma and Paley We have considered Appellants’ arguments against this rejection on pages 44-55 of the Appeal Brief, but we do not find them persuasive. Appellants discuss claims 1, 3, 5, 6, and 37 under separate headings and point out claim limitations therein. However, in discussing claims 3 and 37, Appellants essentially just reiterate the same arguments asserted for claim 1. In contesting this rejection, Appellants argue that Thomasma teaches dispensing paper towels, not cleanroom wipers, and that the nature of Appellants’ cleanroom wiper is incompatible with the hanging and curling action, and with the frictional element taught by Thomasma. Br. 45, 54. This argument is not convincing. As discussed above, it is not apparent from the criteria for cleanroom wipers set forth in paragraph [0003] and the description of material and finish features of cleanroom wipers described in paragraph [0006] of Appellants’ Specification that cleanroom wipers would act in a manner substantially differently from paper towels. Merely by way of example, the cellulosic material and nap features for absorbency of the cleanroom wipers described in Appellants’ Specification are not inconsistent with paper towels, which commonly comprise cellulosic material such as wood pulp and may be provided with nap features for absorbency, a desirable characteristic for a paper towel. Appellants also argue that Thomasma does not teach a loading assembly disposed within the housing, as required in independent claims 1 and 37, and loading a stack of cleanroom wipers into the housing via the loading assembly, as required in claim 37. Br. 45, 47, 55. The Examiner found that Thomasma’s front panel 37 and hinge pins 42 correspond to the claimed loading assembly. Ans. 16. Appellants do not specifically explain why this finding is in error, but merely broadly assert Appeal 2010-002824 Application 10/609,851 16 that Paley “does not teach a loading assembly disposed within the housing” as claimed. Br. 45, 47. Thomasma’s front panel 37 and hinge pins 42, like the hinged lid that comprises Appellants’ loading assembly 206 (Spec. 10, para. [0018]; fig. 2), are part of the housing, and thus reasonably appear to be “within the housing” as called for in claims 1 and 37. Appellants additionally argue that one of ordinary skill in the art would not combine Thomasma with Paley because Thomasma is directed to dispensing dry paper towels and Paley is directed to dispensing wet wipers. Br. 46, 48, 55. We agree with and adopt the Examiner’s reasoning in responding to this argument in the paragraph bridging pages 16 and 17 of the Answer. Appellants argue that it would not have been obvious to combine Thomasma and Paley to arrive at the subject matter of claims 5 and 6, because Thomasma’s dispenser is not suitable for shelf-top use or for tabletop use. Br. 50, 52-53. These arguments are not commensurate with the scope of claims 5 and 6, which recite that the housing is formed of a size suitable for shelf-top use and for tabletop use, respectively. The Examiner found that Thomasma’s housing is formed of such a size (Ans. 7), and Appellants have not pointed out why that finding is in error. For the above reasons, we sustain the rejection of claims 1, 3, 5, 6, and 37 as unpatentable over Thomasma and Paley. Obviousness over Thomasma, Paley, and Tramontina We have considered Appellants’ arguments on pages 101-119 of the Appeal Brief, but we do not find them persuasive. In addition to the arguments asserted against the combination of Thomasma and Paley, which we find unconvincing for the reasons discussed above, Appellants also argue that one skilled in the art would not combine Thomasma, Paley, and Appeal 2010-002824 Application 10/609,851 17 Tramontina because Thomasma and Tramontina are directed to dispensing paper towels, while Paley is directed to dispensing wet towels, and paper towels and cleanroom wipers act differently in dispensers because of their inherently different characteristics. Br. 104, 119. This argument is unpersuasive for the same reasons as the similar argument asserted against the combination of Kienel, Paley, and Tramontina. Appellants also argue that it would not have been obvious to combine Thomasma, Paley, and Tramontina to arrive at the invention recited in claims 5-7, because Thomasma and Tramontina do not disclose an apparatus that is suitable for shelf-top use, for tabletop use, and for freestanding floor use. Br. 110, 113, 116. These arguments are not convincing because they are not commensurate with the scope of claims 5-7, which recite that the housing is formed of a size suitable for shelf-top use and for tabletop use, respectively. For the above reasons, we sustain the rejection of claims 1-3, 5-8, and 37 as unpatentable over Thomasma, Paley, and Tramontina. Obviousness over Bonk and Paley, and over Bonk, Paley, and Tramontina Inasmuch as we have already sustained at least one rejection of each of the claims involved in this appeal, we need not reach a determination as to the propriety of the rejections based on Bonk and Paley and on Bonk, Paley, and Tramontina. Appeal 2010-002824 Application 10/609,851 18 DECISION The Examiner’s decision rejecting claims 1-9 and 37 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED hh Copy with citationCopy as parenthetical citation