Ex Parte Delage

Patent Trial and Appeal Board

Sep 15, 2017

12783226 (P.T.A.B. Sep. 15, 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.
12/783,226 05/19/2010 Jean-Francois DELAGE 145620 6241
759025944
OLIFF PLC
P.O. BOX 320850
ALEXANDRIA, VA 22320-4850
09/19/2017 EXAMINER
CHEYNEY, CHARLES
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
09/19/2017 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):
OfficeAction25944@oliff.com
j armstrong @ oliff.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEAN-FRANCOIS DELAGE
Appeal 2015-002411
Application 12/783,226
Technology Center 3700
Before JOSEPH A. FISCHETTI, CYNTHIA L. MURPHY, and
ROBERT J. SILVERMAN Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellant1 appeals under 35 U.S.C. § 134 from the Examiner’s
rejections of claims 1—8, 15—17, and 19-21. We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 “The real party in interest for this appeal and the present application is
L’Oreal.” (Appeal Br. 1.)
Appeal 2015-002411
Application 12/783,226
STATEMENT OF THE CASE
The Appellant’s invention “relates to packaging and applicator
devices, in particular devices used in cosmetics.” (Spec. 1,11. 3—5.)
Illustrative Claim
1. A packaging and applicator device, comprising:
• a first part; and
• a second part configured to turn relative to the
first part about an axis of rotation;
one of the first part or the second part comprising
a resiliently deformable tab formed in the thickness of a
tubular skirt of the corresponding first or second part; and
an other of the first or second part comprising a
portion in relief, the tab and the portion in relief being
configured to co-operate so that turning the second part
relative to the first part causes the tab to deflect when passing
over the portion in relief, wherein a component of the
deflection is parallel to the axis of rotation, and wherein the
tab and the portion in relief are configured to co-operate to
produce a tactile sensation during the passing, the portion in
relief comprising a sloping flank imparting a lifting movement
to the tab during opening of the device, wherein a component
of the lifting movement is parallel to the axis of rotation.
Kingsford
Mumford
McLelland
Jackel2
References
Mar. 25, 1980
May 25, 1982
Jan. 2, 2001
Jan. 22, 2009
US 4,194,848
US 4,331,247
US 6,168,035 B1
WO 2009/010075 A1
2 Both the Examiner (see Final Action 4) and the Appellant (see Appeal
Br. 4) seem to agree that US 8,365,933 B2 can be used as a translation of
this international application and they both cite to this issued patent, rather
than the published international application, in the appeal papers. We do the
same in our analysis.
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Appeal 2015-002411
Application 12/783,226
Rejections
The Examiner rejects claims 1, 2, 4—8, and 15—17 under 35 U.S.C.
§ 103(a) as unpatentable over Mumford and Jackel. (Final Action 4.)
The Examiner rejects claim 3 under 35 U.S.C. § 103(a) as
unpatentable over Mumford, Jackel, and McLelland. (Final Action 7.)
The Examiner rejects claim 3 under 35 U.S.C. § 103(a) as
unpatentable over Mumford, Jackel, and Kingsford. (Final Action 7.)
ANALYSIS
Claims 1 and 17 are the independent claims on appeal, with the rest of
the claims on appeal (i.e., claims 2—8, 15, 16, and 19—21) depending
therefrom. (See Appeal Br., Claims App.) Independent claims 1 and 17
recite “[a] packaging and applicator device” comprising “a first part” and “a
second part configured to turn relative to the first part.” (Id.) The Examiner
finds that Mumford discloses a packaging device comprising parts 2 and 4.
(See Final Action 4.) Mumford discloses “a child-resistant closure 2” that
“is designed to be threadably applied to a container neck 4.” (Mumford,
col. 2,11. 49-51.)
Independent claims 1 and 17 also recite that one part comprises “a
resiliently deformable tab” and the other part comprises “a portion in relief.”
(Appeal Br., Claims App.) The Examiner finds that, in Mumford, one part
has a deformable tab 18 and the other part has a relief portion 16. (See Final
Action 4—5.) Mumford’s closure 2 has “a locking pawl 18” that is “formed
on the lower edge of [its] closure skirt 8,” and Mumford’s neck 4 has “[a]
lug 16.” (Mumford, col. 2,11. 62—63; see also id., Fig. 2.) As the closure 2
is threaded onto the container neck 4, “the pawl 18 is cammed up and over
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Appeal 2015-002411
Application 12/783,226
the lug 16,” and after passing the lug 16, “the resilient pawl 18 snaps
downwardly toward its original position.” {Id., col. 3,11. 19-26.)
Independent claims 1 and 17 further require “the portion in relief’ to
comprise “a sloping flank imparting a lifting movement to the tab during
opening of the device.” (Appeal Br., Claims App.) The Examiner finds that
Jackel teaches that a relief portion can have a sloping flank to impart a
lifting movement when opening a device. (See Final Action 5; see also
Answer 4.) Jackel teaches a “forcing element” that slopes upwardly to cause
a dispensing closure to be “pressed up with continuous rotational motion.”
(Jackel, col. 8,11 23—24; see also id., Fig. 7.)
The Examiner determines that it would have been obvious to modify
Mumford’s device in view of the teachings of Jackel. (See Final Action 5.)
The Examiner’s proposed modification, as we understand it, involves
providing Mumford’s lug 16 with a sloping flank. As explained by the
Examiner, Mumford teaches pushing the tab (i.e., pawl 18) upward until it
clears the portion in relief (i.e., lug 16) and Jackel is brought into show that
this pushing-up movement can be accomplished using a sloping flank. (See
Answer 3.)
The Appellant argues that “Mumford and Jackel are vastly different in
structure and operation” and it would not have been obvious “to have taken
Jackel’s alleged sloping flank and to have incorporated it into Mumford.”
(Appeal Br. 5.) According to the Appellant, this incorporation would have
“greatly complicated” and/or “hampered” the necessary rotational movement
in Mumford, and “there would have been no reasonable expectation of
success for such a combination.” {Id. at 6; see also Reply Br. 2—3.)
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Appeal 2015-002411
Application 12/783,226
We are not persuaded by this argument because the Examiner’s
rejection does not involve a bodily incorporation of Jackel’s sloped-flank
component into Mumford. As discussed above, the Examiner’s rejection
involves modifying the component in Mumford (i.e., the lug 16) to have a
sloping flank in view of Jackel’s teaching that this geometry can cause
something to be pressed up (i.e., lifted) as the result of rotational motion.
The Appellant does not adequately establish that this modified version of the
lug 16 would complicate, hamper, or otherwise compromise the operation of
Mumford’s closure.
For this same reason, we are not persuaded by the Appellant’s
argument premised upon component 260 in Jackel not being “a resiliently
deformable component’ and/or not “formed in the thickness of a tubular
skirt.” (See Appeal Br. 7.) The Examiner’s rejection does not involve the
replacement of the pawl 18 in Mumford’s device with a component from
Jackel. And the Appellant does not persuasively challenge the Examiner’s
finding that Mumford’s pawl 18 is a resiliently deformable component and
formed in the thickness of a tubular skirt 8. (See Final Action 4—5.)
The Appellant also argues that, even if Mumford and Jackel were
combined, “the resultant combination would not and could not have
produced the tactile sensation” required by independent claims 1 and 17.
(Appeal Br. 7.) We are not persuaded by this argument because, as
discussed above, Mumford’s pawl 18 “snaps downwardly” after passing the
lug 16 (see Mumford, col. 3,11. 25—26); and the Appellant does not contend
that this snapping would be diminished by the proposed combination. And
we agree with the Examiner that such snapping produces a tactile sensation,
such as vibration sensed by the user. (See Answer 4.)
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Appeal 2015-002411
Application 12/783,226
Thus, we sustain the Examiner’s rejection of independent claims 1
and 17 under 35 U.S.C. § 103. The dependent claims are not argued
separately from independent claims 1 and 17 (see Appeal Br. 8); and thus we
also sustain the Examiner’s rejections of claims 2—8, 15, 16, and 19—21 under
35 U.S.C. § 103.
DECISION
We AFFIRM the Examiner’s rejections of claims 1—8, 15—17,
and 19-21.
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
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