10312765 (B.P.A.I. Jan. 19, 2012)

Ex Parte Guillemette et al

Board of Patent Appeals and InterferencesJan 19, 2012

10312765 (B.P.A.I. Jan. 19, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 10/312,765 05/28/2003 Philippe Guillemette 5931 3379 6858 7590 01/20/2012 BREINER & BREINER, L.L.C. P.O. BOX 320160 ALEXANDRIA, VA 22320-0160 EXAMINER BUTLER, MICHAEL E ART UNIT PAPER NUMBER 3653 MAIL DATE DELIVERY MODE 01/20/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte PHILIPPE GUILLEMETTE, OLIVIER JOULIN and JEAN-LOUIS NEVEU ________________ Appeal 2010-001753 Application 10/312,765 Technology Center 3600 ________________ Before CHARLES N. GREENHUT, MICHAEL L. HOELTER and JAMES P. CALVE, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-001753 Application 10/312,765 2 STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. § 134(a), from a final rejection of claims 16-19. Claims 1-15 are canceled. Counsel for Appellants presented oral argument on January 11, 2012. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The Claimed Subject Matter The claimed subject matter pertains to a paper dispenser having a front slot, a wall extending perpendicularly outward along the lower edge of the front slot and a widened portion of the front slot at one end of the slot. Sole independent claim 16 is illustrative of the invention and is reproduced below: 16. Dispenser of paper articles comprising a receptacle closed by a panel forming a front surface of the receptacle, said panel including an opening in a form of a slot with an upper edge and a lower edge, wherein at least a portion of the lower edge of said slot has an extended wall element, including a top surface, which extends outward in relation to said panel and to said upper edge of said slot substantially perpendicular to a plane of said panel to provide an uncovered widened portion in said lower edge and the slot including at one side end-thereof a widened portion, each of said lower edge and the widened portion at one side end of the slot providing manual access to an edge of a first article when a plurality of juxtaposed or interleaved articles are present inside said dispenser. References Relied on by the Examiner Krueger US 2,682,441 Jun. 29, 1954 Moody US 6,585,129 B2 Jul. 1, 2003 Appeal 2010-001753 Application 10/312,765 3 The Rejection on Appeal Claims 16-19 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Krueger and Moody (Ans. 3). ISSUE Has the Examiner provided sufficient evidence and technical reasoning to show that the combination of Krueger and Moody render obvious a paper dispense having a front slot, a wall extending perpendicularly outward along the lower edge of the front slot and a widened portion of the front slot at one end of the slot as set forth in claim 16? ANALYSIS Appellants argue claims 16-19 together (App. Br. 11). We select sole independent claim 16 for review. Claims 17-19 stand or fall with claim 16. The Examiner found that Krueger teaches all the limitations of claim 16 except that the Examiner relies on Moody for teaching a slot having a widened portion at one end thereof (Ans. 3). The Examiner states that it “would have been obvious at the time of the invention for Krueger to widen the dispensing slot at the end to minimize jamming of the sheets as taught by Moody” (Ans. 4). The Examiner specifically references Moody as teaching a widened slot end to resolve “a failure to interweave successively loaded stacks of tissues (C5 L 9-28)” (Ans. 4-5 citing Moody 5:9-28). Appellants contend that Krueger’s “slot 13 does not include a lower edge having an extended wall element” as claimed (App. Br. 11-12). The Examiner has specifically identified Kruger’s component 24 as disclosing Appeal 2010-001753 Application 10/312,765 4 this claim limitation (Ans. 3). Krueger’s component 24 is described as an edge of a door that “projects forwardly of the plane of the upper front case surface” (Ans. 3; Krueger 2:15-20, see also 3:1-6 and Fig. 4). Because Krueger both expressly teaches and discloses a wall element as claimed, Appellant’s contention is not persuasive. Appellants further contend that Krueger discloses a slot that “is large and extends uniformly across the width of the front of the dispenser” and that Krueger’s slot shape as illustrated in Kruger’s Figure 4 allows a portion (i.e., Krueger’s component 32) of the paper “to naturally curve downward and project free of the case” (App. Br. 12 referencing Kruger’s Fig. 4, see also Reply Br. 3-4). According to Appellants, this is contrary to their slot which permits “only a small part of the first sheet of paper” to extend from the slot (App. Br. 12). Consequently, by virtue of Krueger’s illustrated slot, Appellants contend that there is “no basis for modifying the structure of Krueger to provide a widened portion at one end” since the structure of Krueger already includes this feature (App. Br. 12, see also Reply Br. 3). Claim 16 does not specify a dimension for the claimed slot nor does claim 16 specify how far a paper’s edge is to extend from the slot. As such, these contentions are not persuasive. We also do not find persuasive Appellants assertion that there is no basis for modifying Krueger because Krueger’s slot already permits access to the articles therein (App. Br. 12, see also Reply Br. 4). Appellants do not identify where Krueger expresses a dimension for the disclosed slot and, further, regarding Appellant’s reliance on Krueger’s drawings, we are instructed that “patent drawings do not define the precise proportions of the elements and may not be relied on to show particular sizes if the specification is completely silent on the issue” Appeal 2010-001753 Application 10/312,765 5 (Hockerson-Halberstadt, Inc. v. Avia Group Int’l Inc., 222 F.3d 951, 956 (Fed. Cir. 2000)). Appellants also contend that Krueger would not be modified to include the structure of Moody because “Krueger already addresses the problems such features are stated to address. Such features would be redundant” (Reply Br. 3 and 6). Appellants’ contention is not persuasive because Krueger and Moody each address different problems associated with paper dispensers. Krueger states that it is an object of the invention to “provide a paper dispenser having edged surfaces adjacent a dispensing slot so oriented as to hold the projecting paper web away from the dispenser side surfaces” (Krueger 1:9-14). Krueger teaches an edged surface but Krueger is silent regarding any problem that may occur due to the lack of interfolding between adjacent napkins inside the dispenser (see Krueger 3:50-53 and App. Br. 13). Moody addresses this problem of no interfolding stating that “at either end of the narrow elongated slit of the dispensing aperture are terminal portions having an open area span” and that this “open area span is required since the interfolded napkin dispensers are frequently replenished by a technician who fails to interfold the added napkins with the napkins already in the dispenser” (Moody 2:32-40, see also 5:9-28). Thus, Krueger provides an edged surface to address the problem of holding napkins away from the dispenser but does not address the problem identified in Moody, i.e., the problem arising due to a lack of interfolded napkins. Consequently, the solution taught by Krueger is not redundant to the solution taught by Moody. Furthermore, in combining these references, the Examiner states that “Krueger et al. can be modified as disclosed in Moody with predictably successful results” (Ans. 5). Appeal 2010-001753 Application 10/312,765 6 While the Court in KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007) rejected the rigid requirement of a teaching or suggestion or motivation to combine known elements in order to show obviousness, the presence of a teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art may provide helpful insight in an obviousness analysis. In this case, the basis for the Examiner’s combination of the references has been explicitly provided by the references themselves (see Krueger 3:50-53 for the withdrawal of interfolded sheets and see Moody 2:32-40 and 5:9-28 for a solution to problems associated with interfolded sheets). As such, the Examiner’s reasoning for combining Krueger and Moody is not speculative as Appellant asserts (Ans. 4-5; Reply Br. 4, see also 5, 6). Appellants’ contention that “Krueger teaches away from applying the teaching of Moody thereto since Moody teaches a narrow slot” is not persuasive because Krueger does not express a slot dimension other than one sufficient enough to permit a napkin end to pass (App. Br. 13). And also because a teaching away requires a reference to actually criticize, discredit, or otherwise discourage investigation into the claimed solution (In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)). Such criticism is lacking in Krueger. Appellants further contend that modifying Krueger as stated by the Examiner (i.e. adding Moody’s open area span) “will defeat the intended purpose of Krueger” (App. Br. 14). Appellants’ state that the intended purpose of Krueger is “to provide a uniform length open slot to control the manner in which the articles hang for dispensing out the front opening” (App. Br. 14). However, as indicated above, Krueger does not identify a Appeal 2010-001753 Application 10/312,765 7 uniform length open slot as controlling the napkin’s extension from the dispenser, instead, Krueger identifies an edged surface as achieving this desired result (Krueger 1:9-14, 2:52 to 3:6, see also Fig. 4). According, Appellants assertion is not persuasive. In rejecting claims as obvious over the prior art, the Supreme Court noted that "this analysis should be made explicit" (KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) ("rejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness")). In view of the record presented, we find that the Examiner’s articulated reasoning has a rational underpinning to support the conclusion of obviousness. Accordingly, and based on the record before us, we are not persuaded by Appellants’ arguments that error was committed by the Examiner in rejecting claim 16. We sustain the Examiner’s rejection of claims 16-19. CONCLUSION The Examiner has provided sufficient evidence and technical reasoning to show that the combination of Krueger and Moody render obvious a paper dispense having a front slot, a wall extending perpendicularly outward along the lower edge of the front slot and a widened portion of the front slot at one end of the slot as set forth in claim 16. Appeal 2010-001753 Application 10/312,765 8 DECISION The rejection of claims 16-19 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED MP