Ex Parte Fulscher et al

Patent Trial and Appeal Board

Jul 26, 2018

14170056 (P.T.A.B. Jul. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/170,056 01/31/2014
23556 7590 07/30/2018
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
NEENAH, WI 54956
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Ryan Leslie Fulscher
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.
64935724US01 7217
EXAMINER
RANDALL, JR., KELVIN L
ART UNIT PAPER NUMBER
3651
NOTIFICATION DATE DELIVERY MODE
07/30/2018 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):
Kimberlyclark. docketing@kcc.com
Cindy.M.Trudell@kcc.com
Tisha.Sutherland@kcc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RYAN LESLIE FULSCHER, KAREN MARIE MENARD, and
KAM MEI LI 1
Appeal2017-010279
Application 14/170,056
Technology Center 3600
Before DANIELS. SONG, BRANDON J. WARNER, and
ARTHUR M. PESLAK, Administrative Patent Judges.
SONG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134 from the Examiner's
Final Office Action (hereinafter "Final Act.") rejecting claims 1-19 in the
present application (Br. 1). We have jurisdiction under 35 U.S.C. §§ 6(b)
and 134(a).
We AFFIRM-IN-PART.
1 The Appellant is the Applicant, Kimberly-Clark Worldwide, Inc., which is
the real party in in interest (Appeal Brief (hereinafter "Br.") 1 ).
Appeal2017-010279
Application 14/170,056
The claimed invention is directed to a refillable dispenser for pre-
moistened wipes (Abstract). Representative independent claim 1, and
dependent claim 11, read as follows (Br. 6-7, Claims App 'x, emphasis
added):
1. A refillable dispenser for pre-moistened wipes, the
dispenser defining a length dimension and a transverse width
dimension, the dispenser having a top and a bottom spaced apart
in the transverse width dimension, the dispenser comprising a
flexible pouch, the pouch having a front wall having a front wall
periphery and the pouch having a back wall having a back wall
periphery, the front and back walls connected to each other along
their respective peripheries to define a substantially moisture
impervious interior space sandwiched between the front wall and
the back wall,
the dispenser comprising a dispensing opening formed in
the front wall, the dispenser further comprising a movable cover
adapted to cover the dispensing opening,
the dispenser comprising a seam that can be opened to an
open position and resealed to a closed position to connect the
front wall to the back wall, the open position configured to define
a refill opening,
the dispenser comprising a front wall eyelet extending
through the front wall and a back wall eyelet extending through
the back wall, the front wall eyelet superposed over the back wall
eyelet, wherein both the front wall eyelet and the back wall eyelet
are disposed transversely inward of the seam,
the dispenser comprising a handle connected to the pouch
via a handle connector, the handle connector extending through
the front wall eyelet and the back wall eyelet.
11. The dispenser of claim 1, wherein the flexible material has
a bending resistance of between about 40 milligrams of force and
150 milligrams of force.
2
Appeal2017-010279
Application 14/170,056
REJECTIONS
The Examiner rejects various claims under 35 U.S.C. § 103 as
follows:
1. Claims 1--4, 10, 14, and 17 as obvious over Bando (US
7,416,083 B2, iss. Aug. 26, 2008 (hereinafter "Takeshi"2)) in view of
Thoren et al. (US 2010/0001015 Al, pub. Jan. 7, 2010 (hereinafter
"Thoren")), Dodson (US 6,224,258 Bl, iss. May 1, 2001), and Bigg (US
8,496,106 B 1) (Final Act. 5).
2. Claim 5-8 as obvious over Takeshi in view of Thoren, Dodson,
Bigg, and Vassallo (US 6,457,863 Bl, iss. Oct. 1, 2002) (Final Act. 7).
3. Claim 9 as obvious over Takeshi in view of Thoren, Dodson,
Bigg, Vassallo, and King et al. (US 6,550,635 Bl, iss. Apr. 22, 2003
(hereinafter "King")) (Final Act. 8).
4. Claims 11 and 12 as obvious over Takeshi in view of Thoren,
Dodson, Bigg, and Huang et al. (US 6,766,919 B2, iss. Jul. 27, 2004
(hereinafter "Huang") (Final Act. 9).
5. Claim 13 as obvious over Takeshi in view of Thoren, Dodson,
Bigg, and Sarbo et al. (US 2006/0151518 Al, pub. Jul. 13, 2006 (hereinafter
"Sarbo") (Final Act. 9).
6. Claims 15, 16, 18, and 19 as obvious over Takeshi in view of
Thoren, Dodson, Bigg, Vassallo, King, Huang, Sarbo, and Prevo (US
2007/0181592 Al, pub. Aug. 9, 2007) (Final Act. 10).
2 Both the Examiner and the Appellant refer to this reference by the first
name of the inventor "Takeshi." Accordingly, we likewise refer to this
reference as "Takeshi" for clarity.
3
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Application 14/170,056
ANALYSIS
Only those arguments actually made by the Appellant have been
considered in this decision. Arguments that the Appellant could have made
but chose not to make have not been considered and are deemed to be
waived. See 37 C.F.R. § 4I.37(c)(l)(iv); In re Jung, 637 F.3d 1356, 1365-
66 (Fed. Cir. 2011); Ex parte Frye, 94 USPQ2d 1072, 1075-76 (BPAI 2010
(precedential)).
Rejection 1
The Examiner rejects claims 1--4, 10, 14, and 17 as obvious over the
combination of Takeshi, Thoren, Dodson, and Bigg (Final Act. 5). The
Examiner concedes that Takeshi fails to disclose front and back walls
connected to each other that "define a substantially moisture impervious
interior space" as required by independent claim 1 (Final Act. 6). The
Examiner finds that Thoren discloses this limitation (Final Act. 6, citing
Thoren ,r 38). The Examiner concludes that "it would have been obvious for
one of ordinary skill in the art at the time the invention was made to have
been motivated to combine the teachings of Takeshi with that of Thoren so
as to protect inner contents." (Final Act. 6).
The Appellant disagrees with the Examiner's finding, and argues that
"there is no teaching or suggestion that the dispenser of Thoren is moisture
impervious," asserting Paragraph 38 of Thoren merely discloses that the
material of casing 13 is preferably "moisture and tear resistant." (Br. 3 ). In
that regard, the Appellant asserts that "nowhere does Thoren suggest the
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Application 14/170,056
need for moisture-imperviousness or indicate that anything but dry tissue or
nonwoven material would be housed within its dispenser." (Br. 3).
The Appellant's arguments as to Thoren are unpersuasive. Firstly,
claim 1 recites "substantially moisture impervious interior space," and thus,
the casing of Thoren need not be entirely moisture impervious to satisfy the
language of the claims. Secondly, the cited Paragraph 3 8 of Thoren not only
discloses that the flexible casing material is "moisture and tear resistant," but
also that the material may be plastic, and further provided with a backing or
lining of plastic material (Thoren ,r 38). As such, in view of Thoren's
disclosures that its casing material is moisture resistant, can be made of
plastic, and can further be provided with a plastic liner, we agree with the
Examiner that its casing is "substantially moisture impervious," as the
claims recite.
The Appellant also argues that the casing of Thoren is not likely to be
moisture impervious because Thoren discloses using "a zipper 22 or other
mechanical closure means, such as hook and loops, Velcro® or the like," or
"refastenable adhesive material," and such fasteners are not typically
watertight (Br. 3, citing Thoren ,r 40). However, as noted above, the claim
does not require a "watertight" interior space, but instead, merely requires "a
substantially moisture impervious interior space." In that regard, the
Appellant's specification discloses "zipper 69" for opening and closing the
recited seam (Spec. pg. 5, 11. 9-10; Fig. 1).3
3 Although we do not rely on the following, the Appellant notes in its Brief
that Dodson, cited in this rejection, "is directed to a 'zip-loc' -style bag 10
having an intermediate member or loop 13 threaded through a hole
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Application 14/170,056
The Appellant does not set forth any other arguments in its Brief as to
claims 2--4, 10, 14, and 17 that ultimately depend from claim 1. Therefore,
because we are not persuaded by the Appellant's arguments, we affirm the
Examiner's rejection of claims 1--4, 10, 14, and 17.
Rejections 2 and 3
The Appellant relies on its arguments submitted relative to claim 1 for
patentability of claims 5-9, which are the subject of these rejections (Br. 3-
4). Having found unpersuasive the Appellant's arguments directed to claim
1, the Examiner's rejections of claims 5-9 are affirmed.
Rejection 4
Both claim 11 and claim 12 depend from independent claim 1. In
rejecting claims 11 and 12, the Examiner concedes that the combination of
Takeshi, Thoren, Dodson, and Bigg "fails to teach wherein the flexible
material has a bending resistance of between about 40 milligrams of force
and 150 milligrams of force" as recited in claim 11, and does not disclose
the thickness recited in claim 12 (Final Act. 9). The Examiner finds that
Huang discloses such flexible material having the recited thickness and a
bending resistance that overlaps the claimed range (Final Act. 9, citing
Huang, col. 9, 11. 35-50). Based thereon, the Examiner concludes that the
claimed material properties would have been obvious in view of the
reinforced by grommets 12. The bag 10 in intended to provide waterproof
storage for items, such as during boating." (Br. 3).
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Application 14/170,056
teachings in the art "for design purposes as known within the art." (Final
Act. 9).
The Appellant points out that Huang discloses a wet wipe dispenser
10 having a flexible orifice 20 that includes a flexible, rubber-like sheet 22
that has a bending resistance of 100 to about 8000 milligrams of force (Br. 4;
see also Huang, col. 9, 11. 42--48). The Appellant argues that, although
Huang discloses various materials for the flexible, rubber-like sheet, it "does
not disclose or suggest the use of such thermoplastic materials for the main
body of the dispenser." (Br. 4).
The Examiner responds that:
col. 6 lines 9--12 [ofJ Huang describes that the sheet and the
dispenser can be made of the same material. Examiner further
finds that in col. 6 lines 9--12 Huang specifically refers to Fig. 3
when speaking of alternative[ s] which is also the same figure that
is described in col. 10 lines 60-67).
(Ans. 4).
However, we agree with the Appellant that:
when read in conjunction with col. 10, lines 64---67 of Huang, the
language at col. 6, lines 9--12 is suggesting an alternative
embodiment in which the flexible sheet 22 is formed of the same
plastic packaging film or foil film (typical for 'form & fill' seal-
type film containers) that the rest of the dispenser is formed of.
That passage does not stand for the opposite proposition - that
the entire container would be made of the same relatively
expensive thermoplastic elastomeric materials that Huang
prefers for its flexible, rubber-like dispensing orifice sheet.
(Br. 4).
Specifically, we observe that Huang states "[a]lternatively, as seen in
FIG. 3, the [flexible, rubber-like] sheet could be generally the same material
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Appeal2017-010279
Application 14/170,056
as the dispenser," but does not disclose that the dispenser can be made of the
same material as the sheet (Huang, col. 6, 11. 9-12). Huang further disclose
that "FIG. 3 shows a wet wipes dispenser having a flexible container ( e.g., a
form, fill seal type of film container) with a rigid port member attached
thereto." (Huang, col. 10, 11. 64---67). In further discussing the "alternative"
of Figure 3, Huang states that the dispenser container is made from "a form,
fill seal type of film" rather than that the container is made from a flexible,
rubber-like sheet. Thus, in view of the above, we find the Appellant's
arguments as to claim 11 persuasive and reverse the Examiner's rejection of
the same.
As to dependent claim 12, the Appellant relies on its arguments
submitted relative to claim 1 for patentability, and does not submit
arguments specifically directed to claim 12. As such, having found
unpersuasive the Appellant's arguments directed to claim 1, the Examiner's
rejection is affirmed as to dependent claim 12.
Rejection 5
The Appellant relies on its arguments submitted relative to claim 1 for
patentability of claim 13 (Br. 5). Thus, having found unpersuasive the
Appellant's arguments directed to claim 1, the Examiner's rejection of claim
13 is affirmed.
Rejection 6
The Appellant relies on its arguments submitted relative to claims 1
and 11 for patentability of claims 15, 16, 18 and 19 (Br. 5). Independent
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Appeal2017-010279
Application 14/170,056
claim 18 and dependent claim 19 require the flexible material to have "a
bending resistance of between about 40 milligrams of force and 150
milligrams of force." (Br. 5). Accordingly, because the Examiner's
application of Huang is inadequate for the reasons discussed relative to
Rejection 4, we reverse this rejection as to claims 18 and 19. However,
having found unpersuasive the Appellant's arguments directed to claim 1,
the Examiner's rejection is affirmed as to dependent claims 15 and 16 that
ultimately depend from claim 1.
CONCLUSIONS
1. Rejections 1-3, and 5 are Affirmed.
2. Rejection 4 is Affirmed as to claims 12, but is Reversed as to
claim 11.
3. Rejection 6 is Affirmed as to claims 15 and 16, but is Reversed
as to claims 18 and 19.
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-IN-PART
9