Ex Parte De Laforcade

Patent Trial and Appeal Board

Mar 19, 2013

10914168 (P.T.A.B. Mar. 19, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte VINCENT DE LAFORCADE
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Appeal 2011-001365
Application 10/914,168
Technology Center 3700
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Before: WILLIAM V. SAINDON, SCOTT A. DANIELS, and
JEREMY M. PLENZLER, Administrative Patent Judges.

SAINDON, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-001365
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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1-3, 5, 6, 8-13, 19, 21, 24-33, 35-38, 87, 88, 90,
and 92. We have jurisdiction under 35 U.S.C. § 6(b).

The Claimed Subject Matter
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A packaging device, comprising:
a plurality of applicators;
a support for receiving the applicators; and
a receptacle, the support being completely situated inside
the receptacle, the receptacle and the support being separate
pieces;
wherein:
the support comprises a plurality of spacers disposed
between the applicators;
two consecutive spacers are interconnected at one end in
a hinged manner; and
the support is a single piece of a molded plastic material.

References
The Examiner relies upon the following prior art references:
Esposito
Chen1
Chen
Baxter
US 3,256,892
US Des. 305,281
US 4,951,812
US 6,681,780 B1
Jun. 21, 1966
Jan. 2, 1990
Aug. 28, 1990
Jan. 27, 2004

Rejections
I. Claims 1-3, 5, 6, 12, 13, 19, 21, 25-33, 35, and 36 are rejected under
35 U.S.C. § 103(a) as obvious over Chen and Official Notice. Ans. 4.

1 The Chen design patent will be referred to as “Chen ‘281.”
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II. Claims 1-3, 5, 6, 8-13, 19, 21, 24-31, 33, 35-38, 87, 88, 90, and 92 are
rejected under § 103(a) as unpatentable over Chen ‘281, Baxter and/or
Esposito, and Official Notice. Ans. 6.

SUMMARY OF DECISION
We AFFIRM.

OPINION
Rejection I
The Examiner found that Chen describes a packaging device having a
plurality of spacers 20, 30 disposed between applicators (tools) on supports
10, 40, all of which are molded from a single piece and connected to one
another by a film hinge. Ans. 4. The Examiner took Official Notice that it
was well known in the art to place a container (here, the packaging device of
Chen) in a hermetically sealed shipment container (the claimed receptacle).
Ans. 4-5.
Appellant argues all the claims of this rejection as a group. We select
claim 1 as representative. Appellant argues that Chen does not teach a
plurality of spacers disposed between the applicators. App. Br. 8-9. In
particular, Appellant argues that the tools (applicators) in supports 10 and 40
are not separated by spacers from the tools in supports 20 and 30. App. Br.
9. However, as the Examiner found, the claims merely require “a plurality
of spacers disposed between the applicators,” not one spacer between each
applicator. Given that spacers 20 and 30 are between the applicators in 10
and 40, the Examiner’s reading of this element of claim 1 on Chen appears
sound.
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Appellant next argues that the Examiner improperly applied Official
Notice. App. Br. 9-11. In particular, Appellant argues that the claimed
receptacle “is not a peripheral issue.” App. Br. 10. Appellant has not
explained how the Examiner’s finding “is not a peripheral issue.” The
principle evidence relied upon by the Examiner is Chen, not Official Notice.
Official Notice is used for the fact that things are known to be placed in
hermetically sealed shipment containers. Appellant does not challenge the
veracity of this Notice, which is itself seemingly uncontroversial. See, e.g.,
In re Boon, 439 F.2d 724, 728 (CCPA 1971) (requiring “a challenge to
judicial notice … contain adequate information or argument so that on its
face it creates a reasonable doubt regarding the circumstances justifying the
judicial notice”); In re Lundberg, 244 F.2d 543, 551 (CCPA 1957)
(examiner’s statement accepted as true in light of appellant’s failure to
question its accuracy or to present contradicting evidence); In re Fox, 471
F.2d 1405, 1406-07 (CCPA 1973) (affirming rejection under 35 U.S.C.
§ 103 without citation of any prior art based on facts that were unchallenged
by the appellant). Accordingly, we are not apprised of error in the
Examiner’s taking of Official Notice.
Appellant lastly argues that the Examiner has not provided a proper
foundation for modifying Chen. App. Br. 11-12. Appellant first argues that
the Examiner’s rationale “does not have a basis in any evidence of record”
and that “no objective evidence of record … has been provided.” App. Br.
11. However, Appellant’s argument is not commensurate with established
law. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 419 (2007) (“The
obviousness analysis cannot be confined by a formalistic conception of the
words teaching, suggestion, and motivation, or by overemphasis on the
importance of published articles and the explicit content of issued patents.”);
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Perfect Web Tech., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir.
2009) (“while an analysis of obviousness always depends on evidence … it
also may include recourse to logic, judgment, and common sense available
to the person of ordinary skill that do not necessarily require explication in
any reference”). Further, Appellant’s general allegation of error fails to
address the specific reasoning offered by the Examiner. See Ans. 4-5, 9-10.
Appellant argues, second, that the Examiner’s combination has “no
predictable variation of the teachings of Chen” and that the “principle of
operation” of Chen “would be changed.” App. Br. 11-12. Appellant’s
argument is unpersuasive because Appellant offers no cogent reasoning in
support of such a position. Indeed, the Examiner’s “modification” is merely
to place the existing structure of Chen in a shipping container. Such a
“modification” is highly predictable and does not change the underlying
structure at all. Accordingly, we are not apprised of error in the Examiner’s
reasoning for the combination.
Reviewing Appellant’s Brief, we are not apprised of error in the
Examiner’s rejection of claim 1 as obvious in view of Chen and Official
Notice. As such, we sustain the rejection of claim 1, and of claims 2, 3, 5, 6,
12, 13, 19, 21, 25-33, 35, and 36, which fall therewith.
Rejection II
The Examiner found that Chen ‘281 describes a cosmetic packaging
device for a plurality of applicators supported on a plurality of hinged plates.
Ans. 6. The Examiner found that Chen ‘281 does not have single piece
hinges, but that this is described in Baxter and/or Esposito. Ans. 6-7. The
Examiner also found that it is notoriously well known to provide applicators
in a cosmetic case and for those applicators to be brushes or pads
impregnated with a substance. Ans. 6. The Examiner found that it is
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notoriously well known to place a cosmetic case in a purse, suitcase, or
shipment container with a lid (i.e., a receptacle). Ans. 7. Lastly, the
Examiner found that polyolefin (for the support) and woven and non-woven
fabric (for the applicators) is common in the construction of plastic
containers and applicators, and concluded it would have been obvious to
utilize these materials for the container and applicators of Chen ‘281 as the
mere selection of a known material on the basis of its known suitability.
Ans. 7.
Appellant argues the claims of this rejection as a group and only
mentions claim 92 separately. Accordingly, we select claim 92 as
representative, with claims 1-3, 5, 6, 8-13, 19, 21, 24-31, 33, 35-38, 87, 88,
and 90 standing or falling therewith. Appellant first argues that Chen does
not disclose a plurality of spacers as claimed, referring to the Chen of
Rejection I by “reiterate[ing] the argument presented in paragraph VII.A.l.”
of the Appeal Brief. App. Br. 12-13. Given that the Chen of Rejection I is
not the same as Chen ‘281 of Rejection II, this argument is unpersuasive.
Appellant next argues that the Examiner fails to show that the
materials recited in claim 92 (polyolefin support, woven/non-woven
applicators) were known materials used in this type of invention. App. Br.
13. However, Appellant’s mere allegation does not apprise us of error in
these findings. The Examiner’s findings directed to polyolefin and
woven/non-woven applicators are reasonable on their face given the
ubiquitous nature of both. See KSR, 550 U.S. at 418 (2007) (“the
[obviousness] analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
of the inferences and creative steps that a person of ordinary skill in the art
would employ”). There is no evidence or reasoning in the Brief of rational
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disagreement that would tend to suggest that polyolefin containers and/or
woven/non-woven applicators were anything other than known materials.
The Specification’s in-passing mention of polyolefin (“a support is made …
by molding a plastic material such as, for example, a polyolefin”) suggests
that one of ordinary skill is familiar with such a material. Spec., para.
[0011]. The Specification discusses woven/non-woven applicators in the
background section, and again, the discussion’s context suggests that such
materials are conventional. Spec., para. [0002]. In view of the above, we
are not apprised of error in the Examiner’s findings regarding polyolefin and
woven/non-woven applicators.
Reviewing Appellant’s Brief, we are not apprised of error in the
Examiner’s rejection of claim 92 as unpatentable over Chen ‘281, Baxter
and/or Esposito, and Official Notice. Claims 1-3, 5, 6, 8-13, 19, 21, 24-31,
33, 35-38, 87, 88, and 90 fall therewith.

DECISION
We AFFIRM the Examiner’s decision regarding claims 1-3, 5, 6, 8-
13, 19, 21, 24-33, 35-38, 87, 88, 90, and 92.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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