11786638 (B.P.A.I. Sep. 16, 2010)

Ex Parte Bendor et al

Board of Patent Appeals and InterferencesSep 16, 2010

11786638 (B.P.A.I. Sep. 16, 2010)

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. 11/786,638 04/12/2007 Yarron Bendor CM3085#L 9144 27752 7590 09/16/2010 THE PROCTER & GAMBLE COMPANY Global Legal Department - IP Sycamore Building - 4th Floor 299 East Sixth Street CINCINNATI, OH 45202 EXAMINER RANDALL, JR., KELVIN L ART UNIT PAPER NUMBER 3651 MAIL DATE DELIVERY MODE 09/16/2010 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte YARRON BENDOR, MARCIA COLE-YOCOM, DONNA BARKER, STEFANO BARTOLUCCI, and JOHANNES LAMBERTUS MARIA MENSINK ____________ Appeal 2010-010419 Application 11/786,638 Technology Center 3600 ____________ Before JENNIFER D. BAHR, JOHN C. KERINS, and STEFAN STAICOVICI, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2010-010419 Application 11/786,638 2 STATEMENT OF THE CASE Yarron Bendor et al. (Appellants) appeal under 35 U.S.C. § 134 (2002) from the Examiner’s decision rejecting under 35 U.S.C. § 103(a) claims 1-7 and 11-13 as being unpatentable over Persson (US 2002/0170841 A1, pub. Nov. 21, 2002) and Norris (US 2007/0102442 A1, pub. May 10, 2007 on an application filed Nov. 10, 2005); claims 8-10, 14, and 17 as being unpatentable over Persson, Norris, and Dearwester (US 4,623,074, iss. Nov. 18, 1986); and claim 15 as being unpatentable over Persson, Norris, and Barish (US 3,967,756, iss. Jul. 6, 1976). We have jurisdiction over this appeal under 35 U.S.C. § 6 (2002). The Invention Appellants’ claimed invention is directed to a container for dispensing vertically configured wipes. Spec. 1:8-10. Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A container (1) for dispensing wipes (8) comprising a body portion (2), a cover member (3) and a sealing assembly, wherein said sealing assembly comprises a lid (6) and a sealing mounting (7) and wherein said cover member (3) comprises an aperture (4), wherein the highest point (9) of said aperture (4) is above the highest point (10) of said sealing mounting (7) and the lowest point (11) of said aperture (4) is above the lowest point (12) of said sealing mounting (7), when the lowest point and the highest point of said aperture (4) and said sealing mounting (7) are determined with respect to a virtual vertical axis. SUMMARY OF DECISION We REVERSE. Appeal 2010-010419 Application 11/786,638 3 OPINION Each of independent claims 1 and 17 requires a cover member comprising an aperture having a lowest point above the lowest point of a sealing mounting.2 The Examiner acknowledges that Persson fails to describe structure satisfying this limitation, and relies on Norris to supply this feature. Final Rej. 6. Specifically, the Examiner finds that Norris describes a cover member (closure 20) comprising an aperture 23, wherein the lowest point of the aperture 23 is above the lowest point of a sealing mounting (recess 29). Id. According to the Examiner, recess 29 is a sealing mounting because lid 22 “rests or connects/mounts with” recess 29 of closure 20. Ans. 5. Appellants contend that recess 29 of Norris “is not part of the seal” and thus, implicitly, that recess 29 is not part of a sealing mounting. App. Br. 4. Accordingly, an issue raised in the appeal of each of the rejections before us for review is whether Norris’ lid 22 seats on recess 29 to be efficiently and stably positioned on closure 20 so as to provide effective sealing, such that recess 29 may reasonably be considered a “sealing mounting” (or part of a “sealing mounting”) as called for in claims 1 and 17. We find that the teachings of Norris are, at best, ambiguous as to whether lid 22 seats on recess 29. None of the drawing figures of Norris clearly depicts the lid 22 in contact with recess 29. To the contrary, figure 3 of Norris appears to show a gap between the grip tab 26 and recess 29. 2 As described in Appellants’ Specification, a sealing mounting 7 “provide[s] a seating for said lid 6 thereby helping said lid 6 to be efficiently and stably positioned so as to provide effective sealing with respect to the content of said dispensing container 1.” Spec. 9:34-37. Appeal 2010-010419 Application 11/786,638 4 Norris does not provide any explicit description of the lid 22 seating in recess 29. Norris describes the function of recess 29 as “accept[ing] the grip tab 26 [of lid 22] when the lid is closed” and the function of the grip tab 26 as opening the lid. Norris, paras. [0017] and [0014]. This description, and, indeed, Norris’ use of the label “grip tab” to describe that portion of lid 22, suggest that the recess 29 provides access under the grip tab 26 to facilitate opening of the lid 22, thereby further intimating the presence of a gap between the grip tab 26 and recess 29. For the above reasons, we find that Norris does not support the Examiner’s finding that Norris’ lid 22 seats on recess 29 to be efficiently and stably positioned on closure 20 so as to provide effective sealing, such that recess 29 may reasonably be considered a “sealing mounting” (or part of a “sealing mounting”) as called for in claims 1 and 17. Accordingly, the Examiner’s reliance on Norris to make up for the acknowledged deficiency of Persson is unavailing. The Examiner does not rely on either Dearwester or Barish for any teaching that would remedy the shortcoming of the combination of Persson and Norris. Thus, we do not sustain any of the Examiner’s rejections. DECISION The Examiner’s decision is reversed. REVERSED Appeal 2010-010419 Application 11/786,638 5 hh THE PROCTER & GAMBLE COMPANY Global Legal Department - IP Sycamore Building - 4th Floor 299 East Sixth Street CINCINNATI, OH 45202