Ex Parte Broad et al

Patent Trial and Appeal Board

Jun 22, 2016

13674190 (P.T.A.B. Jun. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/674, 190 11112/2012
27752 7590 06/24/2016
THE PROCTER & GAMBLE COMPANY
Global Patent Services - Legal IP
Central Building, CS
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Gavin John BROAD
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.
11332CC 9393
EXAMINER
HOOVER, MATTHEW
ART UNIT PAPER NUMBER
1746
NOTIFICATION DATE DELIVERY MODE
06/24/2016 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):
centraldocket.im @pg.com
pair_pg@firsttofile.com
mayer.jk@pg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GA VIN JOHN BROAD, ADAL TECLEAB,
and JASON LEE DEBRULER
Appeal2014-006562
Application 13/674,190 1
Technology Center 1700
Before CHUNG K. PAK, JEFFREY T. SMITH, and
GEORGE C. BEST, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner's final rejection of claims 1-5, 8, 10, and 11. We have
jurisdiction pursuant to 35 U.S.C. § 6(b).
1 According to the Appeal Brief, the Real Party in Interest is The Procter &
Gamble Company. App. Br. 1.
Appeal2014-006562
Application 13/674,190
Appellants' invention relates to an apparatus for labeling a container
comprising a first winder, a first vacuum box, a vacuuming means, a heater
plate, and a heat label applicator. (Spec. 2.) Claim 1 is reproduced below
from the Claims Appendix to the principal Brief:
1. An apparatus for labeling a container comprising:
(vi) a first winder;
(vii) a first vacuum box;
(viii) a vacuuming means;
(ix) a heater plate downstream of said first vacuum box; and
(x) a heat label applicator downstream of said heater plate;
wherein
(a) said first winder is capable of unwinding a heat transfer
label from a heat transfer label roll, wherein the heat transfer
label comprises a heat label releasably affixed to a heat label
web;
( e) said first vacuum box is capable of containing at least a
portion of the heat transfer label unwound from the first winder,
said portion comprising a heat label releasably affixed to a heat
label web;
(t) said vacuuming means is capable of vacuuming the
first vacuum box and the portion of the heat transfer label
contained in the first vacuum box;
(g) said heater plate is capable of heating the heat transfer
label received from the first vacuum box; and
( e) said heat label applicator is capable of applying the
heat label to a container thereby providing a labeled
container and the heat label web.
The Examiner maintains the following rejections (Ans. 2-10):
I. Claim 8 is rejected under 35 U.S.C. § 112, second paragraph, as
indefinite.
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Application 13/674,190
II. Claims 1-11 are rejected on the ground of nonstatutory double
patenting over claims 1-5 and 7-10 of U.S. Patent No.
7,892,383.
III. Claims 1-5 and 7-10 under 35 U.S.C. § 103(a) as obvious over
Gonzalez (US 2007/0209753 Al, published Sept. 13, 2007) in
view ofMolins (EP 0441596 Al, published Aug. 14, 1991).
IV. Claim 11 under 35 U.S.C. § 103(a) as obvious over Gonzalez,
Molins in view of Brooks (US 5660676, issued Aug. 26, 1997)
and Mizuhara (US 2007/0252887 Al, published Nov. 1, 2007).
OPINION2
Rejections I and II
Appellants do not argue the rejections of claims under 35 U.S.C.
§ 112, second paragraph and nonstatutory double patenting in the Appeal
Brief. (See Appeal Brief generally.)
We summarily affirm these rejections which Appellants have not
argued in the Brief. Cf, e.g., In re Baxter Travenol Labs., 952 F.2d 388,
3 92 (Fed. Cir. 1991) ("It is not the function of this court to examine the
claims in greater detail than argued by an appellant, looking for nonobvious
distinctions over the prior art.").
Rejections III and IV
After review of the respective positions provided by Appellants and
the Examiner, we agree with Appellants that the Examiner has not
established that it would have been obvious to a person of ordinary skill in
2 Our analysis applies to independent claim 1.
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Application 13/674,190
the art to add vacuum reservoirs, such as described in Molins, to the label
applicator system of Gonzalez.
Obviousness is a legal question based on underlying factual findings.
In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000). Factual
determinations include, inter alia, the scope and content of the prior art, the
level of skill in the art at the time of the invention, the objective evidence of
nonobviousness, the presence or absence of a motivation to combine, and
whether a reference constitutes analogous prior art. See In re Bigio, 381
F.3d 1320, 1324 (Fed. Cir. 2004); In re Gartside, 203 F.3d 1305, 1316
(2000). "A factfinder should be aware, of course, of the distortion caused by
hindsight bias and must be cautious of arguments reliant upon ex post
reasoning." KSR Int'! v. Teleflex, Inc., 550 U.S. 398, 421 (2007). For this
reason, "rejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness." Id. at 418 (citing In re Kahn, 441F.3d977, 988 (Fed. Cir.
2006)).
Gonzalez describes a label applicator system wherein "[t]he supply,
the take-up and the drive element are operably engaged with one another to
maintain a relatively constant tension in the web." Gonzalez i-f 11. Gonzalez
further discloses:
The present system 10 includes a number of features that
enhance label L application speed and placement accuracy.
First is the web transport system 11 which is configured to
accurately move the web W through the applicator system 10
maintaining the web W at a fairly constant tension. The servo
web feed roller 40 provides the motive force to move the web
W through the system and the dancer arms 22, 24 are biased (as
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Appeal2014-006562
Application 13/674,190
by springs 58) slides each having an idler roller 60, 62 at the
end thereof over which the web W passes. The dancer arms 22,
24 provide for proper tension of the web W and are used to
monitor the quantity of labels/web on the payout and take-up
reels, 14, 16, respectively.
Gonzalez i-f 34.
Thus, Gonzalez discloses a label applicator system designed to
maintain constant tension.
The Examiner has not established that there is a need to modify the
label applicator system of Gonzalez to include vacuum reservoirs as
proposed.
For the foregoing reasons and those stated in the Brief, we determine
that the Examiner's conclusion of obviousness is not supported by facts.
"Where the legal conclusion [of obviousness] is not supported by facts it
cannot stand." In re Warner, 379 F.2d 1011, 1017 (CCPA 1967).
Accordingly, the Examiner's § 103 rejections over the combination of
Gonzalez and Molins are reversed. 3
ORDER
The Examiner's rejections of claim 8 under 35 U.S.C. § 112, second
paragraph and rejection of claims 1-11 on the ground of nonstatutory double
patenting over US 7,892,383 are affirmed.
The Examiner's prior art rejections are reversed.
3 The Brooks and Mizuhara references were cited to address other features
not related to the dispositive issue.
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Appeal2014-006562
Application 13/674,190
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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