Ex Parte Glakpe et al

Patent Trial and Appeal Board

Jan 26, 2018

13267054 (P.T.A.B. Jan. 26, 2018)

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.
13/267,054 10/06/2011 Esinam Deniece Glakpe 11891 5472
27752 7590 01/30/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
POWERS, LAURA C
ART UNIT PAPER NUMBER
1785
NOTIFICATION DATE DELIVERY MODE
01/30/2018 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):
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 ESINAM DENIECE GLAKPE,
ANGELA LYNN JENNINGS, SARA ELIZABETH GORDON,
NAOMI RUTH NELSON, ANDRE MELLIN, and
PAUL DENNIS TROKHAN
Appeal 2017-000760
Application 13/267,054
Technology Center 1700
Before ROMULO H. DELMENDO, JAMES C. HOUSEL, and
MONTE T. SQUIRE, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants1 appeal from the
Examiner’s decision to reject claims 1-18 and 20 under 35 U.S.C.
1 Appellants identify the real party in interest as The Proctor &
Gamble Company (Br. 1).
Appeal 2017-000760
Application 13/267,054
103(a) as unpatentable over Laurent.2 3We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM, s
STATEMENT OF THE CASE
The invention relates to a sanitary tissue product having a
surface pattern (Spec. 2:6-7). Appellants disclose that “[sjurface
patterns have been used for aesthetic reasons and for providing
consumers with a perception about a characteristic or property of
the sanitary tissue products” (id. at 1:17-19). According to
Appellants, consumers desire surface patterns “that provide or are
perceived as providing a superior sanitary tissue product” (id. at
1:31-32). As such, Appellants teach that there is a need for
sanitary tissue products having a surface pattern that provides
consumers with “a perception of superiority” (id. at 2:1—3).
Claims 1 and 18, reproduced below from the Claims
Appendix to the Appeal Brief, are illustrative of the subject matter
on appeal.
1. A convolutedly wound sanitary tissue product
having a surface comprising a surface pattern, wherein
the surface pattern comprises a design element that
comprises a first embossed line art element and a first
2 Laurent et al., US 6,106,928, issued August 22, 2000 (“Laurent”).
3 Our Decision refers to the Specification (Spec.) filed October 6,
2011, the Examiner’s Final Office Action (Final) dated December
5, 2014, Appellants’ Appeal Brief (Br.) filed May 11, 2015, and the
Examiner’s Answer (Ans.) dated August 13, 2015.
2
Appeal 2017-000760
Application 13/267,054
complementary fragmented embossed line art element,
wherein the first complementary fragmented embossed
line art element comprises discrete dashes and
shadows the first embossed line art element.
18. A convolutedly wound sanitary tissue product
having a surface comprising a surface pattern, wherein
the surface pattern comprises one or more fragments of
a whole design element and wherein the sanitary
tissue product is void of a whole design element.
Remaining independent claim 20 similarly recites a
convolutedly wound sanitary tissue product having a surface
pattern including a plurality of filamentary embossed line
patterns comprising a embossed line art element and a
fragmented embossed line art element.
ANALYSIS
After review of the totality of the evidence relied upon in this
appeal, we determine that Appellants’ arguments are insufficient
to outweigh the evidence of obviousness marshalled by the
Examiner. Thus, Appellants have not identified reversible error
in the Examiner’s obviousness rejection. In re Jung, 637 F.3d
1356, 1365 (Fed. Cir. 2011). We sustain the above rejection based
on the findings of fact, conclusions of law, and rebuttals to
arguments well expressed by the Examiner in the Final Office
Action and the Answer. The following comments are added for
emphasis.
3
Appeal 2017-000760
Application 13/267,054
Appellants do not argue claims 2—17 and 20 separately from
claim 1. In accordance with 37 C.F.R. § 41.37(c)(l)(iv) (2014), we
select claim 1 as representative. Claims 2-17 and 20 stand or fall
with claim 1.
With regard to claim 1, the Examiner finds Laurent teaches
a sanitary paper product having a surface pattern whose
protrusions or embossments meet the recited elements of the
claims (Ans. 3—4). The Examiner finds Laurent fails to explicitly
teach that the sanitary paper product is convolutedly wound, but
nonetheless teaches that the product may be used for products
such as toilet paper or paper towels (id. at 4). The Examiner
concludes it would have been obvious to have wound Laurent’s
paper product about a roll or core since such products are well
known in the art (id.).
Appellants do not challenge the Examiner’s obviousness
conclusion, but instead argue that Laurent fails to teach or
suggest a design element or filamentary line pattern having both
a first line art element and a complementary fragmented line art
element that comprised discrete dashes and shadows the first line
art element (Br. 3). Appellants further urge that “the Examiner
equates Laurent’s second protrusions to the presently claimed
complementary fragmented embossed line art element[s]” (Br. 4).
According to Appellants, “modifying Laurent in such a way
renders Laurent unsatisfactory for its intended purpose” (id.).
4
Appeal 2017-000760
Application 13/267,054
Specifically, Appellants contend that “[t]o modify Laurent such
that its second protrusions become part of its graphic design
defeats Laurent’s purpose of separating [the graphic design
pattern from the background] pattern” (id. at 5).
However, contrary to Appellants’ arguments and as shown in
the Examiner’s annotated Figure 7 of Laurent (Ans. 4), Laurent’s
surface design includes both first line art elements corresponding
to the lines defining the petals and complementary fragmented
line art elements corresponding to the rows of dashes or dots
within the petals. Indeed, Laurent teaches that the design
includes as many rows of dashes or dots as the space defined by
the first line art elements permit (Laurent 7:2-5). Laurent further
teaches that each row of dots (elements 21, 22, 23 as seen in
Figure 7) is further disclosed to be dissonant from the dots
forming the background design and enhances the outline of the
line art elements to improve their legibility (id. at 6:57-61). As
such, Laurent’s graphic design comprising the petals defined by
line art elements and fragmented line art elements is separate
and distinct from the background pattern.
With regard to claim 18, the Examiner finds Laurent teaches
a sanitary paper product having a surface pattern whose
protrusions or embossments meet the recited elements of the
claims (Ans. 6). In addition, the Examiner finds that around the
edge of the tissue product depicted in Figure 7, the design
5
Appeal 2017-000760
Application 13/267,054
elements of the surface pattern are truncated, i.e., are fragments
of the whole graphic design (id.). The Examiner finds Laurent
fails to explicitly teach that the sanitary paper product is
convolutedly wound, but nonetheless teaches that the product may
be used for products such as toilet paper or paper towels (id. at 4).
The Examiner concludes it would have been obvious to have
wound Laurent’s paper product about a roll or core since such
products are well known in the art (id.).
Again, Appellants do not challenge the Examiner’s
obviousness conclusion, but instead argue that Laurent fails to
teach or suggest a sanitary tissue product comprising fragments of
a whole design but void of the whole design (Br. 3). Appellants
contend that, in addition to two fragments, three whole design
elements are depicted in Laurent, Figure 7 (id.). Appellants assert
that they have distinguished fragments from whole elements (id.
at 4, citing Spec. 7:27-8:5 and 10:7-12).
Appellants’ arguments are not persuasive of reversible error.
We begin by noting that Appellants define “whole design element”
as “a complete design element (in other words, no portion of the
design element is truncated)” (Spec. 7:29-30). In addition,
Appellants define “design element” as “an individual unit or
portion of an individual unit that forms the surface pattern” (id. at
7:27-28). Finally, Appellants define “fragmented design element”
as “a design element that is not complete (in other words, at least
6
Appeal 2017-000760
Application 13/267,054
one portion of the design element is truncated or missing)” (id. at
7:31-32). Appellants disclose that Figure 5B is an example of a
fragment or portion of the whole design element 10 of Figure 5A
(id. at 7:33-8:1). Further, although Appellants disclose that a
surface pattern present on a sanitary tissue product’s surface may
be void of whole design elements, the surface pattern may
comprise fragments of a whole design element which, when
combined together, form a whole design element (id. at 8:2-5).
In light of these disclosures, we note, as did the Examiner
(Ans. 11), that Laurent’s graphic design shows a leaf and some
petals of a flower (Laurent, Fig. 3, 6:61-65). Thus, each of
Laurent’s graphic designs depict a portion or fragment of a flower,
rather than a whole flower, and would correspond to a fragmented
design element as defined by Appellants. More importantly,
although Appellants define “whole design element,” nothing in
this definition or elsewhere in Appellants’ disclosure limits a
whole design element to a single depicted flower. As such,
Laurent’s whole design element may include five depicted flowers,
of which only a portion or fragment is shown on the tissue product
of Figure 7. Accordingly, whether Laurent’s whole design element
is interpreted to be a flower or a plurality of flowers, the result is
that Laurent’s tissue product is void of a whole design element.
This last point leads us to our view that Appellants’ attempt
to distinguish over Laurent’s design fails for another reason —
7
Appeal 2017-000760
Application 13/267,054
that the claims recite an ornamental design that fails to
functionally distinguish the recited sanitary tissue product over
that of Laurent. Appellants clearly teach that the surface pattern
is provided for “aesthetic reasons and for providing consumers
with a perception about a characteristic or property of the
sanitary tissue products” (Spec. 1:17-19). Appellants further
disclose that known surface patterns include a variety of images
meant to impart an appearance or image including a woven
structure, a net, wavy lines and dots, flowers, butterflies, or
geometric shapes (id. at 1:20-29). Laurent likewise suggests a
variety of surface pattern designs including flowers and feathers
(Laurent 6:61-67). Appellants further teach that a surface pattern
providing consumers with a perception of superiority was desired
(Spec. 2:1-3). Finally, Appellants contend that the complementary
fragmented embossed line art element “is meant to be seen such
that it may create a perception of superiority and an image
distinct from known floral and wavy line patterns” (Br. 5).
Appellants neither disclose nor argue that the recited
surface pattern performs any function, but instead teach that the
recited surface pattern is selected for its aesthetic properties.
While Appellants disclose that the disclosed surface pattern
provides consumers with a perception of superiority, Appellants do
not provide any technical reasoning nor evidentiary showing to
substantiate this perception. Nor do Appellants establish that this
8
Appeal 2017-000760
Application 13/267,054
perception is grounded in reality, i.e., that the sanitary tissue
product having the disclosed surface pattern is functionally
superior to a sanitary tissue product having other surface patterns
such as Laurent’s. Appellants’ teaching that the surface pattern
may be printed rather than embossed (Spec. 7:24-25) further
supports that Appellants’ aesthetic design is non-functional and
fails to patentably distinguish over Laurent’s design.
CONCLUSION
In summary:
Claims
Rejected
Basis Reference(s) Affirmed Reversed
1-18, 20 § 103(a) Laurent 1-18, 20
Summary 1-18, 20
DECISION
Upon consideration of the record, and for the reasons given
above and in the Answer, the decision of the Examiner rejecting
claims 1-18 and 20 is affirmed.
TIME PERIOD FOR RESPONSE
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).
AFFIRMED
9