Ex Parte SiebelDownload PDFPatent Trial and Appeal BoardOct 25, 201713616904 (P.T.A.B. Oct. 25, 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. 13/616,904 09/14/2012 Justin Franklin Siebel 049121-0225-00-US-489786 3571 105855 7590 10/27/2017 Drinker Biddle & Reath LLP 1500 K Street NW, Suite 1100 Washington, DC 20005 EXAMINER KUMAR, RAKESH ART UNIT PAPER NUMBER 3651 NOTIFICATION DATE DELIVERY MODE 10/27/2017 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): DB RIPDocket @ dbr. com penelope. mongelluzzo @ dbr. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JUSTIN FRANKLIN SIEBEL Appeal 2015-007718 Application 13/616,904 Technology Center 3600 Before KEN B. BARRETT, EDWARD A. BROWN, and LEE L. STEPINA, Administrative Patent Judges. BARRETT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Justin Franklin Siebel (Appellant) seeks our review under 35 U.S.C. § 134 of the Examiner’s rejection of claims 1—3, 5—12, and 21—25. We heard oral argument on September 20, 2017. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal 2015-007718 Application 13/616,904 THE INVENTION Appellant’s claimed invention pertains to “dispensers and, more particularly, to dispensers of napkins and other paper products.” Spec. 11. Claims 1 and 21 are independent claims. Claim 1, reproduced below, is illustrative of the subject matter on appeal1 2. 1. A dispenser of paper products, comprising: a plurality of walls defining an interior of said dispenser, said interior being configured to store the paper products; a pair of dispensing mouths at oppositely disposed ones of said walls, said dispensing mouths being configured to provide access to the paper products in said interior; a biasing member and a pair of support elements in said interior, said support elements being configured to support the products there against, said biasing member urging each of said support elements toward a respectively adjacent one of said dispensing mouths; and a plurality of guiding elements in said interior of the dispenser configured to maintain an orientation of said support elements during inward and outward movement thereof, wherein: the dispenser has a geometric center defined by the distance between said dispensing mouths, each of said support elements is configured to move outwardly toward one of said dispensing mouths and inwardly away from said one of said dispensing mouths, and 1 For purposes of deciding this appeal, we review the claims as set forth in the Appendix to the Appeal Brief. We understand that the After-Final Amendment dated September 18, 2014, was entered notwithstanding the checked box No. 3 on the Advisory Action of October 22, 2014, indicating that the amendment would not be entered. See Advisory Action (10/22/14) (checked box No. 7 and continuation page indicating the amendment will be entered); Amendment After Final (as Annotated; filed 10/22/14) (containing the annotation “OK TO ENTER”); see also App. Br. 1 (Appellant indicating the understanding that the amendment was entered). 2 Appeal 2015-007718 Application 13/616,904 at least one of said support elements is free to travel inwardly to reach at least the geometric center. App. Br., Claims Appendix A-l. THE REJECTIONS The following Examiner’s rejections are before us for review: 1. Claims 1—232 are rejected under 35 U.S.C. § 102(b) as being unpatentable over Gessler (US 2,011,403, iss. Aug. 13, 1935); and 2. Claims 1—3, 5—12, and 21—25 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Gessler and LaCount (US 6,257,443 Bl, iss. July 10, 2001). ANALYSIS A. The Anticipation Rejection The Final Action (Aug. 5, 2014) contains a stated ground of rejection of claims 1—23 as anticipated by Gessler. Final Act. 4. Neither the Final Action nor the Answer contains a further discussion of the rejection. See id.; Ans. passim. Appellant challenges the rejection, arguing that the Examiner has failed to explain how Gessler discloses all the limitations of the rejected claims. App. Br. 4; see also id. (noting that the Examiner, in the obviousness rejection, states that the plurality of guiding elements feature is missing from Gessler). 2 We recognize that not all of claims 1—23 are before us on appeal, with claims 4 and 13—20 having been withdrawn from consideration. See Final Act. 1. We, nonetheless, identify the ground of rejection as that stated by the Examiner. See id. at 4. 3 Appeal 2015-007718 Application 13/616,904 To the extent that this anticipation rejection has not been withdrawn, we cannot sustain the rejection as it lacks any discussion or analysis by the Examiner for our review. B. The Obviousness Rejection The claimed invention pertains to a paper product (e.g., napkin) dispenser having a biasing member (e.g., a spring) urging support elements or platens, which support the paper products, toward a dispensing opening. The Examiner finds that Gessler discloses much of the claimed invention of independent claim 1, but fails to disclose a plurality of guiding elements in the interior of the dispenser to maintain an orientation of the support elements. Final Act. 6. The Examiner turns to LaCount for that feature, reasoning: It would have been obvious to one of ordinary skill in the art at the time the invention was made to have modified the teachings of Gessler to have included a plurality of guiding elements in the interior of the dispenser to maintain an orientation of said support elements as taught by LaCount because the position of said support elements can be guided as they are biased in an engaged position and assuring the support elements do not become twisted within the dispenser. Id. at 7. Gessler discloses a napkin dispenser formed from a single paper blank and a spring. Gessler, 2, col. 1,11. 32—35; Fig. 5. Gessler’s dispenser is designed to be inexpensive and disposable, and to have the benefit of being able to be shipped in a flat form. Id. at 1, col. 1,11. 2—5, 15—25. LaCount discloses a more substantial napkin holder having apertures 64 in the bottom of the dispenser into which is fitted insert 70 made of, e.g., plastic, and having two spaced-apart pairs of legs 74. LaCount, col. 3,11. 51—56. An 4 Appeal 2015-007718 Application 13/616,904 aperture in the insert acts as a guide channel for plates 54 and 56, which support the napkins. Id.; see Figs. 3, 5, 7. The Examiner finds that components of the insert correspond to the claimed guiding elements. Final Act. 6. We are not persuaded that the Examiner has provided adequate reasoning with rational underpinning as to why one of ordinary skill would have modified Gessler’s dispenser to have an aperture and the inserts of LaCount. See App. Br. 5—7. The reasoning as to why one would add guiding elements so the support elements of Gessler can be guided is circular, and there does not appear in the record or in the Examiner’s explanation that there was a need to avoid twisting of the support elements that would prompt one to modify Gessler’s napkin dispenser. Without more, we cannot sustain the rejection of independent claim 1 as obvious over Gessler and LaCount. Independent claim 21 recites similar pertinent features with different labels—platens and tracks. Accordingly, we also cannot sustain the rejection of independent claim 21, or of the remaining rejected claims, which depend from either claim 1 or claim 21. DECISION The decision of the Examiner to reject claims 1—3, 5—12, and 21—25 is reversed. REVERSED 5 Copy with citationCopy as parenthetical citation