Ex parte DUNNING et al.

Board of Patent Appeals and Interferences

Sep 8, 1998

08380824 (B.P.A.I. Sep. 8, 1998)

Application for patent filed January 30, 1995.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 12
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte CHARLES E. DUNNING
and
RUDOLPH W. SCHUTZ
_____________
Appeal No. 97-1151
Application 08/380,8241
______________
ON BRIEF
_______________
Before COHEN, MEISTER and ABRAMS, Administrative Patent
Judges.
COHEN, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 97-1151
Application 08/380,824
2
This is an appeal from the final rejection of claims
3 through 5, 7, 8, and 10. These claims constitute all of the
claims remaining in the application.
Appellants’ disclosed invention pertains to an
apparatus for holding and dispensing a coreless roll of toilet
tissue. An understanding of the invention can be derived from
a reading of exemplary claim 10, a copy of which appears in
the APPENDIX to the brief (Paper No. 7).
As evidence of obviousness, the examiner has applied
the documents listed below:
Avery 2,419,809 Apr. 29, 1947
Hertz 2,606,724 Aug. 12, 1952
The following rejections are before us for review.
Claims 10, 3 through 5, 7, and 8 stand rejected
under 35 U.S.C. § 103 as being unpatentable over Avery in view
of Hertz.
The full text of the examiner's rejection and
response to the argument presented by appellants appears in
Appeal No. 97-1151
Application 08/380,824
In response to an ORDER FOR COMPLIANCE (Paper No.9),2
appellants submitted a paper labeled "SUPPLEMENTAL REPLY
BRIEF" (Paper No. 10) providing information omitted from the
brief filed August 8, 1996 (Paper No. 7).
In our evaluation of the applied patents, we have3
considered all of the disclosure thereof for what it would
have fairly taught one of ordinary skill in the art. See In
re Boe, 355 F.2d 961, 965, 148 USPQ 507, 510 (CCPA 1966).
Additionally, this panel of the board has taken into account
not only the specific teachings, but also the inferences which
one skilled in the art would reasonably have been expected to
draw from the disclosure. See In re Preda, 401 F.2d 825, 826,
159 USPQ 342, 344 (CCPA 1968).
3
the answer (Paper No. 8), while the complete statement of
appellants’ argument can be found in the brief (Paper No. 7). 2
In the brief (page 6), appellants indicate that the
rejected claims do not stand or fall together.
OPINION
In reaching our conclusion on the obviousness issue
raised in this appeal, this panel of the board has carefully
considered appellants’ specification and claims, the applied
patents, and the respective viewpoints of appellants and the 3
examiner. As a consequence of our review, we make the
determination which follows.
Appeal No. 97-1151
Application 08/380,824
4
We reverse the rejection of claims 10, 3 through 5,
7, and 8 under 35 U.S.C. § 103 as being unpatentable over
Avery in view of Hertz.
At the outset, we point out that we fully comprehend
the examiner’s assessment and application of the relied upon
teachings of the Avery and Hertz patents. However, for the
reasons set forth infra, we do not conclude that the claimed
invention would have been obvious based upon the evidence
before us, as did the examiner.
Independent claim 10 is drawn to an apparatus which
comprises, in combination, inter alia, a wall mounted
dispenser, with two spaced side supports, normally employed to
support and dispense a conventional roll of toilet tissue
having a central core, a receptacle having a receptacle
interior in the form of an open-topped trough for
accommodating a coreless roll of toilet tissue, first and
second projections on outer receptacle side
surfaces with at least one of the projections being movable
Appeal No. 97-1151
Application 08/380,824
5
relative to the receptacle, the receptacle being rotatably
connected to the wall mounted dispenser by the first and
second projections and movable between a first position with
the open-topped trough being substantially unexposed and a
second position with the open-topped trough being
substantially exposed to allow insertion of a coreless roll of
toilet tissue.
Consistent with the underlying disclosure, claim 10
clearly requires a rotatable receptacle for accommodating a
coreless roll of toilet tissue.
Turning to the Avery patent (Figure 1), we find that
the cavity 11 of the label dispenser provides the receptacle
for receiving and supporting a supply roll 15 of tape 17 and
labels 18 (column 3, lines 5 through 8). A rotatable cover
20, mounted for rotation by rivets 23 (Figure 2) can be turned
to
permit a new supply roll to be dropped into the receptacle
(Figure 3) and thereafter returned to its closed position
(column 3, line 75 to column 4, line 13).
Appeal No. 97-1151
Application 08/380,824
6
As is evident from our review of the Avery document,
supra, this patent clearly fails to provide a rotatable
receptacle with at least one of first and second projections
being movable relative to the receptacle, the receptacle
accommodating a coreless roll of toilet tissue, as required
by claim 10.
The toilet paper roll cover concealer and holder of
Hertz (Figure 4) may fairly be viewed as a non-rotatable
receptacle for a paper roll, with the receptacle having
depressible pin projections 14 (Figure 6) to be sprung into
openings 12, 13 within a wall recess 11 (Figure 3).
Simply stated, it is the view of this panel of the
board that a collective evaluation of the respective teachings
of Avery and Hertz would not have provided a sound basis for
one having ordinary skill in the art to so reconfigure the
label dispenser of Avery as to address the particular features
of the apparatus of claim 10 as set forth, supra, absent
impermissible
Appeal No. 97-1151
Application 08/380,824
7
hindsight reliance upon appellants’ own teaching. It is for
this reason that the rejection on appeal must be reversed.
The decision of the examiner is reversed.
REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
) BOARD OF
PATENT
JAMES M. MEISTER ) APPEALS AND
Administrative Patent Judge )
INTERFERENCES
)
)
)
NEAL E. ABRAMS )
Administrative Patent Judge )
Appeal No. 97-1151
Application 08/380,824
8
Thomas R. Lampe
Bielen Peterson & Lampe
1990 N. California Blvd.
Suite 720
Walnut Creek, CA 94596