Ex Parte Hill et al

Patent Trial and Appeal Board

Jul 24, 2018

13330871 (P.T.A.B. Jul. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/330,871 12/20/2011
23556 7590 07/26/2018
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
NEENAH, WI 54956
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Robert Michael Hill
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.
64774175US01 7647
EXAMINER
COLLINS, MICHAEL
ART UNIT PAPER NUMBER
3651
NOTIFICATION DATE DELIVERY MODE
07/26/2018 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 ROBERT MICHAEL HILL and
KEVIN CHRISTOPHER POSSELL
Appeal 2017-011711 1
Application 13/330,871 2
Technology Center 3600
Before BIBHU R. MOHANTY, BART A. GERSTENBLITH, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1, 2, 4--8, and 10-22, which constitute all the claims
pending in this application. Claims 3 and 9 have been cancelled. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references the Appeal Brief ("Br.," filed Mar. 21, 2017), the
Examiner's Answer ("Ans.," mailed June 23, 2017), and Final Office Action
("Final Act.," mailed Sept. 28, 2016).
2 According to Appellants, the real party in interest is Kimberly-Clark
Worldwide, Inc. Br. 1.
Appeal 2017-011711
Application 13/330,871
BACKGROUND
The Specification discloses "[a] container for storing wipes." Spec. 2,
1. 2
CLAIMS
Claims 1, 11, and 19 are the independent claims on appeal. Claim 1 is
illustrative of the appealed claims and recites:
1. A container for storing moist wipes comprising:
a container base including a front wall, a back wall, a top
wall, and a bottom wall defining an interior cavity for storage
of a stack of moist wipes;
wherein the stack defines a height dimension which
extends from a stack bottom to a stack top, wherein the wipes
are stacked in the height dimension;
a dispensing panel including a dispensing partition
formed therethrough;
a support portion positioned within the interior cavity of
the container for support of and configured to face the stack
bottom;
wherein the support portion forms a support portion
angle between about 100 and about 115 degrees relative to the
bottom wall;
wherein the dispensing panel lies in a plane that is within
± 10 degrees of the support portion,
wherein a minimum head space distance between the
dispensing partition and the top of the stack of wipes while
present in the interior cavity in a fullest configuration is at least
0.5 inches.
Corrected Claims Appendix 2 (filed Mar. 21, 2017).
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Appeal 2017-011711
Application 13/330,871
REJECTION
The Examiner rejects claims 1, 2, 4--8, and 10-22 under 35 U.S.C.
§ 103(a) as unpatentable over Simpson3 in view of Tramontina. 4
DISCUSSION
Claims 1, 2, 4-8, and 10-19
Appellants raise arguments with respect to claims 1, 2, 4--8, and 10-
19 as a single group. See Br. 3--4. We select claim 1 as representative of
this group and the remaining claims fall with claim 1.
With respect to claim 1, the Examiner finds that Simpson discloses a
container as claimed except that Simpson "does not specifically disclose a
container wherein a minimum head space distance between the dispensing
partition and the top of the stack of wipes while present in the interior cavity
in a fullest configuration is at least 0.5 inches." Final Act. 7-8 (citing
Simpson Figs. 1-3, 5, 6). With respect to this claim requirement, the
Examiner relies on Tramontina. Specifically, the Examiner finds and
concludes:
Tramontina et al. disclose a container wherein a minimum head
space distance between the dispensing partition and the top of
the stack of wipes while present in the interior cavity in a fullest
configuration is at least 0.5 inches (see column 8 lines 29-37).
Therefore, it would have been obvious to a person of ordinary
skill in the art at the time of Applicant's invention to modify the
container disclosed by Simpson by including a container
wherein a minimum head space distance between the
dispensing partition and the top of the stack of wipes while
present in the interior cavity in a fullest configuration is at least
0.5 inches, as disclosed by Tramontina et al., for the purpose of
3 Simpson, US 7,090,096 B2, iss. Aug. 15, 2006.
4 Tramontina et al., US 7,124,911 B2, iss. Oct. 24, 2006. ("Tramontina")
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Appeal 2017-011711
Application 13/330,871
providing control ribs to align and support the paper products
being dispensed (see column 8 lines 10-15).
Id. at 8.
As discussed below, we are not persuaded of reversible error in the
rejection of claim 1.
Appellants first assert that Simpson discloses a coupon dispenser in
which the top of the stack of coupons snugly abuts the dispenser opening
such that "Simpson will never deliver a 'minimum head space distance
between the dispensing partition and the top of a stack of wipes' of 'at least
0.5 inches."' Br. 3. In light of this disclosure, Appellants argue that one of
ordinary skill in the art would not have been motivated to space Simpson's
stack of coupons as claimed, "because doing so would not allow the device
of Simpson to function as intended." Br. 3--4.
We disagree. First, we note that although Appellants indicate
questions regarding the Examiner's findings with respect to Tramontina,
Appellants do not specifically point to any alleged errors in the Examiner's
findings. See id. at 3. Second, we are not persuaded that the fact that
Simpson discloses that the coupons snugly abut the top of the dispenser,
without more, is sufficient to show that Simpson would be rendered
unsuitable for its intended purpose if the claimed head space were provided
in Simpson's device. Simply put, we see no indication, and Appellants do
not provide any explanation, as to why modifying Simpson's dispenser as
proposed would render Simpson's device unsuitable for dispensing coupons
or wipes.
Next, Appellants argue that the claimed device must be suitable for
moist wipes and that "Simpson cannot reasonably be modified to provide a
substantially moisture-impervious environment within which to effectively
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Appeal 2017-011711
Application 13/330,871
store moist wipes." Id. at 4. We are not persuaded for the reasons provided
by the Examiner. See Final Act. 5-6; see also Ans. 4---6. Specifically, we
agree with the Examiner that the claim language "for storage of a stack of
moist wipes" is simply an intended use for the device and does not
necessarily impart any structural requirements to the claim. We agree with
the Examiner that Simpson's device is capable of performing the function
claimed, i.e., Simpson's device could store moist wipes for some period of
time. Further, we find that the Examiner's unrebutted response to
Appellants' argument shows that the use of plastic material suitable for
storing moist wipes would have been obvious to one of ordinary skill in the
art. See Final Act. 5---6; see also Ans. 5---6 ( citing Tramontina col. 6, 11. 18-
23, 27-31; col. 9, 11. 42--43).
Based on the foregoing, we are not persuaded of reversible error with
respect to the rejection of claim 1. Accordingly, we sustain the rejection of
claim 1. For the same reasons, we sustain the rejection of claims 2, 4--8, and
10-19, which fall with claim 1 as noted above.
Claims 20-22
Appellants separately indicate that the rejection of claims 20-22
includes reversible error because each of these claims affirmatively recites a
stack of moist wipes are part of the device. Br. 4. We disagree for the
reasons discussed above. Specifically, we find that the Examiner's
unrebutted response to Appellants' argument shows that the use of plastic
material suitable for storing moist wipes would have been obvious to one of
ordinary skill in the art, and thus, the inclusion of a stack of such wipes in
the device would have been obvious to one of ordinary skill in the art. See
Final Act. 5-6; see also Ans. 5---6 (citing Tramontina col. 6, 11. 18-23, 27-
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Appeal 2017-011711
Application 13/330,871
31; col. 9, 11. 42--43). Accordingly, we also sustain the rejections of
claims 20-22.
CONCLUSION
We AFFIRM the rejection of claims 1, 2, 4--8, and 10-22.
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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