14278456 (P.T.A.B. Mar. 9, 2017)

Ex Parte Brantley et al

Patent Trial and Appeal BoardMar 9, 2017

14278456 (P.T.A.B. Mar. 9, 2017)

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. 14/278,456 05/15/2014 Franklin Forrest Brantley R60999 1210US.C1 (0721.3) 6909 26158 7590 03/13/2017 WOMBLE CARLYLE SANDRIDGE & RICE, LLP ATTN: IP DOCKETING P.O. BOX 7037 ATLANTA, GA 30357-0037 EXAMINER JEBARI, MOHAMMED ART UNIT PAPER NUMBER 2482 NOTIFICATION DATE DELIVERY MODE 03/13/2017 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): IPDocketing@WCSR.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FRANKLIN FORREST BRANTLEY, EDDIE LEE NUCKOLS, DARRELL THOMAS DIXON, TIMOTHY FREDERICK THOMAS, CALVIN WAYNE HENDERSON, and BALAGER ADEME Appeal 2016-007389 Application 14/278,456 Technology Center 2400 Before JEFFREY S. SMITH, MICHAEL J. STRAUSS, AND IRVIN E. BRANCH, Administrative Patent Judges. BRANCH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35U.S.C. § 134 from a rejection of claims 25—33, 35—43, and 45—50. Claims 1—24 are canceled and claims 34 and 44 are objected to, but indicated to be allowable if rewritten in independent form. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2016-007389 Application 14/278,456 CLAIMED SUBJECT MATTER The claims are directed to a filtered smoking article inspection system. Abstract. Claim 25, reproduced below with the disputed limitation italicized, is illustrative of the claimed subject matter: 25. A filtered smoking article inspection system for a smoking article comprising a filter element having a mouth end terminus and a smokable rod having a lighting end terminus opposite from the filter element, the mouth end terminus and the lighting end terminus extending substantially perpendicularly to a longitudinal axis of the smoking article, the smokable rod including a smokable material having a circumscribing outer layer of a wrapping material, the smokable rod and filter element being serially secured to each other by a tipping material circumscribing the filter element along a longitudinal periphery thereof and the smokable rod along a portion of a longitudinal periphery thereof adjacent to the filter element, said inspection system comprising: a transport device configured to transport individual as- formed smoking articles from a first position to a second position such that the tipping material associated with each smoking article is accessible at least about the portion of the longitudinal periphery of the smoking article, the transport device configured to engage at least one of the mouth end terminus of the filter element and the lighting end terminus of the smokable rod of the smoking article to support the smoking article during movement from the first position to the second position without contacting any part of the longitudinal periphery of the smoking article; and an inspection device operably engaged with the transport device and configured to optically inspect each smoking article at least about the portion of the longitudinal periphery of the smoking article having the tipping material as the smoking article is transported between the first and second positions, the inspection device being configured to automatically determine from the optical inspection whether the inspected smoking article is defective. 2 Appeal 2016-007389 Application 14/278,456 REFERENCES AND REJECTIONS Claims 25—30, 33, 35—43, 45—47, and 50 stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Ruau (US 2,246,107; June 17, 1941) and Grollimund (US 5,432,600; July 11, 1995). Ans. 4-9. Claims 31, 32, 48, and 49 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Ruau, Grollimund, and Rupert (US 3,575,276; Apr. 20, 1971). Ans. 9-10. ANALYSIS The Examiner finds the combination of Ruau and Grollimund discloses all elements of claim 25. Ans. 4—6. Appellants argue error because, in Ruau, the transport device is in contact with the smoking article. App. Br. 11—13. Accordingly, Ruau does not disclose “without contacting any part of the longitudinal periphery of the smoking article,” as recited in claim 25. Id. We are unpersuaded of error. The limitation at issue reads as follows: the transport device configured to engage at least one of the mouth end terminus of the filter element and the lighting end terminus of the smokable rod of the smoking article to support the smoking article during movement from the first position to the second position without contacting any part of the longitudinal periphery of the smoking article. Claim 25. The Examiner finds that this limitation is met by Ruau’s studs (14) and arms (8) (Figs. 2 and 5). Ans. 4—5. The studs “are slightly less in diameter than the diameter of a cigarette so that end faces of a cigarette are 3 Appeal 2016-007389 Application 14/278,456 engaged by the studs and substantially the whole of the tobacco at an end face is engaged by a stud.” Ruau col. 2,11. 32—35. Appellants argue error because Ruau also discloses locating elements (15) which contact “part of the longitudinal periphery of the smoking article.” App. Br. 11—15. While true that the locating elements contact part of the longitudinal periphery of the smoking article, the Examiner does not cite the locating elements as teaching the clamed “transport device configured ... to support the smoking article during movement. . . without contacting any part of the longitudinal periphery of the smoking article.” Further, Appellants do not provide persuasive evidence that locating elements 15 are “configured ... to support the smoking article during movement” as claimed. Accordingly, it is immaterial whether Ruau discloses additional elements which contact part of the longitudinal periphery of the smoking article because the claim reads on the elements cited by the Examiner. We adopt only the Examiner’s findings and conclusion that claim 25 is rendered obvious by the combination of Ruau and Grollimund. Ans. 4—6. We do not adopt the Examiner’s response to Appellant’s arguments. Ans. 10-12. Rather, we find Appellants’ arguments unpersuasive for the reason we articulate above. Appellants remaining arguments (App. Br. 13—15) are premised on this misunderstanding of the basis of the Examiner’s rejection. Accordingly, we are unpersuaded of error in the Examiner’s rejection of claim 25. We also are unpersuaded of error in the Examiner’s rejection of claim 38, which Appellants argue on the same basis. Id. 16—21. We sustain the Examiner’s rejection of claims 25 and 38 and the Examiner’s rejections of claims 26—33, 4 Appeal 2016-007389 Application 14/278,456 35—37, 39-43, and 45—50, which Appellants do not separately argue with particularity. DECISION We affirm the Examiner’s decision rejecting claims 25—33, 35—43, and 45—50. 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)(l)(iv). AFFIRMED 5