Ex Parte Bechyne

Patent Trials and Appeals Board

Feb 15, 2019

13777728 - (D) (P.T.A.B. Feb. 15, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/777,728 02/26/2013
23556 7590 02/20/2019
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
NEENAH, WI 54956
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Christopher M. Bechyne
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.
64885592US01 6828
EXAMINER
STEVENS, ALLAN D
ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
02/20/2019 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):
Kimberlyclark. docketing@kcc.com
Tisha.Sutherland@kcc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER M. BECHYNE
Appeal2018-006475 1
Application 13/777,7282
Technology Center 3700
Before BIBHU R. MOHANTY, KENNETH G. SCHOPPER, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of
claims 1, 2, 6-11, and 15-17.3 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Our decision references the Appeal Brief ("Br.," filed Dec. 5, 2017), the
Examiner's Answer ("Ans.," mailed Feb. 21, 2018), and the Final Office
Action ("Final Act.," mailed July 13, 2017).
2 According to Appellant, the real party in interest is Kimberly-Clark
Worldwide, Inc. Br. 1.
3 The Examiner has indicated that claims 3-5, 12-14, and 18 include
allowable subject matter. See Final Act. 9.
Appeal 2018-0064 7 5
Application 13/777 ,728
BACKGROUND
The Specification describes embodiments of "a wipes container
adapted to be set on a flat surface." Spec. 2, 11. 27-28.
CLAIMS
Claims 1 and 10 are the independent claims on appeal and recite:
1. A wipes container adapted to be set on a flat surface, the
container comprising:
a dispenser housing defining a top wall spaced apart from
and generally parallel to a bottom wall, a first side wall spaced
apart from and generally parallel to a second side wall, and a first
end wall spaced apart from and generally parallel to a second end
wall, wherein all of the walls collectively define an interior
space,
wherein the top wall includes a dispensing orifice through
which wipes can be extracted from the interior space; and
a plurality of wipes disposed within the interior space,
each wipe adapted to be extracted from the interior space through
the dispensing orifice,
the first end wall having a first slip-resistant periphery and
the second end wall having a second slip-resistant periphery,
each slip-resistant periphery comprising thermoplastic elastomer
material,
wherein said thermoplastic elastomer material is disposed
along each periphery such that:
( 1) thermoplastic elastomer material in the first slip-
resistant periphery and thermoplastic elastomer material in
the second slip-resistant periphery each contact said flat
surface when the bottom wall faces said flat surface;
(2) thermoplastic elastomer material in the first slip-
resistant periphery and thermoplastic elastomer material in
the second slip-resistant periphery each contact said flat
surface when either of the first and second side walls faces
said flat surface;
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Application 13/777 ,728
(3) thermoplastic elastomer material in the first slip-
resistant periphery contacts said flat surface when the first
end wall faces said flat surface; and
( 4) thermoplastic elastomer material in the second
slip-resistant periphery contacts said flat surface when the
second end wall faces said flat surface.
10. A wipes container adapted to be set on a flat surface, the
container comprising:
a dispenser housing defining a top wall spaced apart from
and generally parallel to a bottom wall, a first side wall spaced
apart from and generally parallel to a second side wall, and a first
end wall spaced apart from and generally parallel to a second end
wall, the top and bottom walls being generally perpendicular to
the side walls and the end wall, and the side walls being generally
perpendicular to the end walls, wherein all of the walls
collectively define an interior space, the container having a first
end proximate the first end wall and a second end proximate the
second end wall;
wherein the top wall includes a dispensing orifice through
which wipes can be extracted from the interior space;
a plurality of wipes disposed within the interior space,
each wipe adapted to be extracted from the interior space through
the dispensing orifice;
a first thermoplastic elastomer loop that wraps around the
first end of the container along the top wall, bottom wall, first
side wall, and second side wall; and
a second thermoplastic elastomer loop that wraps around
the second end of the container along the top wall, bottom wall,
first side wall, and second side wall.
Br. 6-8.
3
Appeal 2018-0064 7 5
Application 13/777 ,728
REJECTION
The Examiner rejects claims 1, 2, 6-11, and 15-17 under 35 U.S.C.
§ I03(a) as unpatentable over Takayuki4 in view ofBabcock. 5
DISCUSSION
Claims 1, 2, and 6-9
With respect to claim 1, we are persuaded of error by Appellant's
argument that the application of Babcock's teachings to Takayuki' s device
would not result in a wipes container as claimed. See Br. 4.
With respect to claim 1, the Examiner finds:
Takayuki discloses the claimed invention except for the
first end wall having a first slip-resistant periphery and the
second end wall having a second slip-resistant periphery,
wherein each slip-resistant periphery comprises thermoplastic
elastomer material and the material is disposed along each
periphery such that they contact a flat surface when the bottom
wall, either of the first and second side walls, and either of the
first and second end walls face the flat surface.
Final Act. 4. The Examiner further finds
Babcock teaches a composite closure 10 compnsmg a
closure cap 12 of polypropylene and an outer gripping layer 14
of thermoplastic elastomeric material, wherein the outer gripping
layer 14 extends about a periphery of a skirt portion 18 of the
closure cap 12 and along a portion of a top wall portion 16 of the
closure cap 12 and the closure cap 12 has annular projection 24
and outwardly-projecting annular element 22 which extend to the
surface of the outer gripping layer 14 and restrain it in place ( see
fig. 1 and 5).
4 Takayuki et al., JP 2003-I37367A, pub. May 14, 2003 ("Takayuki").
5 Babcock et al., US 2008/0073312 Al, pub. Mar. 27, 2008 ("Babcock").
4
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Application 13/777 ,728
Id. at 4--5. The Examiner concludes that it would have been obvious to
modify Takayuki' s side lids to include thermoplastic elastomeric material
"in order to enhance gripping and manipulation of the side lids." Id. at 5.
Appellant argues, and we agree, that such a combination would not
result in a device as claimed. Br. 4. Specifically, the claim requires that
each of the side walls include a slip-resistant periphery made of
thermoplastic elastomer material and positioned such that the slip-resistant
material contacts the flat surface upon which the container is set when the
bottom wall faces the flat surface. It is not clear how the resulting
combination, which includes adding a slip resistance surface to Takayuki' s
side walls would result in side walls that contact a flat surface as claimed.
Although Takayuki's container appears to be adapted to be set on a flat
surface, Takayuki does not disclose that the end walls (side lids 14) are
adapted to contact such a flat surface. In fact, Takayuki suggests otherwise
by teaching that the side lids 14 are inserted into a groove 15 in the main
body of the container. See Takayuki ,r 18; see also id. Fig. 2 (showing a lip
that extends beyond the outer periphery of side lid 14 such that the lip and
not the side lid would contact a flat surface).
Further, we agree with Appellant that Babcock's composite closure is
specifically designed to prevent the slip-resistant material from contacting a
flat surface on which it may be set. See Babcock ,r,r 23-25. Babcock
discloses outwardly projecting elements 22 and 24 that extend beyond the
gripping surface 14 and provide "sliding surfaces." Id. In the Answer, the
Examiner finds that Babcock teaches an embodiment in which these
projecting elements "extend only to the surface of the outer gripping layer."
Ans. 9 (citing Babcock Figs. 5, 6; ,r 23). However, Babcock explains that in
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Appeal 2018-0064 7 5
Application 13/777 ,728
this embodiment element 22 extends below element 14 and element 24
extends above element 14 in order to allow for the "sliding surfaces." See
Babcock ,r 25. Thus, we agree with Appellant that Babcock's specific
disclosure would not allow for the gripping layer to prevent sliding on a flat
surface. Br. 4.
Because Takayuki does not teach that the end walls contact a flat
surface on which the container rests and because Babcock does not teach the
use of a slip-resistant surface in contact with a flat surface on which
Babcock's closure rests, we fail to see how the combination of teachings in
Takayuki and Babcock would result in a device with the claimed
configuration. Thus, we are persuaded of error in the rejection of claim 1.
Accordingly, we do not sustain the rejection of claim 1. We also do not
sustain the rejection of claims 2 and 6-9, which depend from claim 1.
Claims 10, 11, and 15-17
Claim 10, although similar to claim 1, does not require that any slip-
resistant thermoplastic elastomer is adapted to contact a flat surface on
which the device is set. With respect to this claim, the Examiner finds that
Takayuki discloses a device as claimed except for the first and second
elastomeric loops. Final Act. 8. The Examiner relies on Babcock as
disclosing an outer gripping layer 14, which is an elastomeric loop, and the
Examiner concludes it would have been obvious to include such loops in
Takayuki "in order to enhance gripping and manipulation of the side lids
14." Id.
Appellant does not address claims 1 and 10 separately, and we are not
persuaded of error by Appellant's arguments, which are focused on
limitations specific to claim 1. In particular, Appellant argues that Babcock
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Appeal 2018-0064 7 5
Application 13/777 ,728
does not teach a configuration that prevents sliding on a flat surface and that
the resulting combination would not resist slipping on flat surfaces.
However, claim 10 does not require that any slip-resistant surface is in
contact with the flat surface upon which the device is resting. Further, we
agree with the Examiner that one of ordinary skill in the art would have
found it obvious to add an elastomeric loop to Takayuki's side lids based on
Babcock's disclosure of a composite closure with an outer gripping layer
such that the lids would be "configure for enhanced gripping and
manipulation by consumers." Babcock ,r 1.
Based on the foregoing, we are not persuaded of error in the rejection
of claim 10. Accordingly, sustain the rejection of claim 10. We also sustain
the rejection of dependent claims 11 and 15-17, for which Appellant does
not provide separate arguments.
CONCLUSION
We AFFIRM the rejection of claims 10, 11, and 15-17. We
REVERSE the rejection of claims 1, 2, and 6-9.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
7