Ex Parte Jou-Chen et al

Board of Patent Appeals and Interferences

Jan 30, 2012

10884748 (B.P.A.I. Jan. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte FUNG JOU-CHEN, JEFFREY DEAN LINDSAY, and
HERB FLORES VELAZQUEZ
____________________

Appeal 2010-002241
Application 10/884,748
Technology Center 3700
____________________

Before KEN B. BARRETT, EDWARD A. BROWN, and
MICHAEL L. HOELTER, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
Fung Jou-Chen et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from a rejection of claims 1, 2, 7, 9, 10, 13, 14, 16-23, 42-44, and 46.
Claim 45 was cancelled, and claims 3-6, 8, 11, 12, and 15 were withdrawn
from consideration. We have jurisdiction over this appeal under 35 U.S.C.
§ 6(b).
We affirm-in-part.

THE INVENTION
Independent claim 1, reproduced below, is representative of the
appealed claims:
1. An apparatus for storing and attaching
cleaning wipes, comprising:
a container having a body defining an
interior space containing a plurality of individual
cleaning wipes, the body also defining an exterior
surface, the body having an attaching surface that
comprises at least a portion of the exterior surface,
the container having a lid to allow and prevent
access through the body to the interior space; and
an attachment mechanism configured for
attaching a cleaning wipe to the attaching surface
such that the container itself comprises the only
handle for use in applying the cleaning wipe to a
surface.

THE REJECTIONS
1. Claims 1, 2, 7, 9, 14, 18, and 20 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Vosbikian (US 6,098,239; iss. Aug. 8, 2000).
2. Claims 1, 2, 7, 14, 18, and 20 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Mestral (CH 332,759; pub. Sep. 30, 1958).
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3. Claims 1, 2, 7, 9, 14, 16, and 18 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Rouch (US 3,373,457; iss. Mar. 19, 1968).
4. Claims 1, 10, 14, 17, 18, 20, 21, and 42 are rejected under
35 U.S.C. § 102(e) as anticipated by McKay (US 2004/0177863 A1; pub.
Sep. 16, 2004).
5. Claims 19, 44, and 46 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Vosbikian and Kosaka (US 6,608,118 B2; iss. Aug. 19,
2003).
6. Claim 10 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Vosbikian and Scott (US 6,113,271; iss. Sep. 5, 2000).
7. Claim 13 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Vosbikian and Kaylor (US 2004/0078219 A1; pub. Apr. 22, 2004).
8. Claims 21-23 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Vosbikian and Post (US 6,769,153; iss. Aug. 3, 2004).
9. Claim 43 is rejected under 35 U.S.C. § 103(a) as unpatentable
over McKay and Kosaka.

ANALYSIS
Vosbikian - Claims 1, 2, 7, 9, 14, 18, and 20
Claim 1 recites "the container itself comprises the only handle for use
in applying the cleaning wipe to a surface." The Examiner found Vosbikian
discloses a "container (20, 22, 38, 54, or 72)" and that "the container itself
is capable of comprising the only handle for use (. . . a user is capable of
employing the container as the only handle by pushing or pulling it along the
ground). . . ." (Ans. 3). We understand that the Examiner found Vosbikian's
mop head (see e.g., mop head 6; col. 2, ll. 51-52; Fig. 1) corresponds to the
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claimed "container." The Examiner stated "[t]he language that the Appellant
uses to attempt to claim 'only one handle' is an intended function or use."
(Id. at 12).
Appellants contend Vosbikian discloses a dust mop including a mop
head attached to a separate handle (App. Br. 17, citing to Vosbikian, Figs. 1,
5, 7, and 10), and that Vosbikian's handle is for use in applying the cleaning
wipe, and thus "the container cannot be the only handle" (App. Br. 18).
These contentions are not persuasive.
Firstly, claim 1 does not recite that the container is "the only handle of
the apparatus," or the apparatus has "only one handle." We construe claim 1
to not preclude the apparatus from comprising a handle in addition to the
container. While Appellants correctly point out that Vosbikian discloses that
the mop includes a handle connected to the mop head (see e.g., handle 4 and
mop head 6; col. 2, ll. 51-52; Fig. 1), Appellants have not provided any
persuasive argument why the mop head could not be grasped by a user
(without also grasping the handle), such that the mop head functions as the
only handle used in applying the cleaning wipe to a surface. Hence, we
sustain the anticipation rejection of claim 1 based on Vosbikian, and of
claims 2, 7, 9, 14, 18, and 20 which depend from claim 1 and Appellants do
not separately argue.

Mestral - Claims 1, 2, 7, 14, 18, and 20
Claim 1 recites "a container having a body defining an interior space
containing a plurality of individual cleaning wipes." (Emphasis added).
The Examiner found the wipes are not positively recited as a structural
limitation of the apparatus. (Ans. 12-13). The Examiner found Mestral
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discloses "a plurality of cleaning wipes 8." (Id. at 4). The Examiner found
"the interior space [of Mestral] is capable of containing a plurality of wipes,
in addition wipes 8 do in fact comprise a plurality of wipes in that they are
formed as one integral wipe until a user cuts a strip portion of sufficient
size." (Id. at 4, citing Mestral, p. 3, ll. 2-10).1 The Examiner further found
that the unitary fabric 8 comprises a "plurality of wipes" once cut into more
than one strip/wipe. (Id. at 13). We disagree.
Firstly, the Examiner incorrectly determined that the cleaning wipes
are not positively recited as a structural limitation of the claimed apparatus.
We construe claim 1 to require the container to contain a plurality of
individual cleaning wipes.
In addition, Appellants contend that Mestral does not disclose a
container containing "a plurality of individual cleaning wipes." (App. Br.
18-19). Mestral discloses using a portion of a fabric strip 8 in an active
position on the brush, while the remainder of the fabric 8 is spare fabric kept
inside the body. (Mestral, p. 2, ll. 20-22). Mestral further discloses that
once the portion of the fabric strip 8 in the active position becomes soiled,
that portion is cut off from the remainder of the fabric, and a new portion of
the (same) strip is then used. (Mestral, p. 3, ll. 4-10). The Examiner did not
identify any disclosure in Mestral that more than one fabric strip 8 is
contained in an interior space of the body of the brush at any time.
Moreover, even if the cut-off portion of the fabric strip and the remaining
portion of the fabric strip are considered to be individual fabric strips, the
Examiner has not identified any disclosure in Mestral that both fabric strips
are contained in an interior space of the brush at the same time. Rather,

1 English-language translation of Mestral.
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Mestral discloses that the cut-off portion of the fabric strip is "eliminated."
(Mestral, p. 3, ll. 7-8). Hence, because the Examiner has not established by
a preponderance of the evidence that Mestral discloses all limitations called
for in claim 1, we reverse the anticipation rejection of claim 1 based on
Mestral, and claims 2, 7, 14, 18, and 20 which depend from claim 1.

Rouch - Claims 1, 2, 7, 9, 14, 16, and 18
Claim 1 recites "a container having a body defining an interior space
containing a plurality of individual cleaning wipes . . . the body having an
attaching surface that comprises at least a portion of the exterior surface."
The Examiner found Rouch discloses a container 20 having a body (i.e., wall
member 30) defining an interior space containing a plurality of individual
cleaning wipes (i.e., sheets 38), and also defining an exterior surface ("any
surface of 30 facing outwardly or exteriorly, as in Figures 1 or 5,") and the
body having an attaching surface that comprises at least a portion of the
exterior surface ("surface of 30 where wipes 38 are attached.") (Ans. 5; see
also Rouch, col. 2, ll. 7-9, 26-27). The Examiner found the "interior space"
of Rouch's body contains a plurality of individual cleaning wipes in the
position shown in Figure 1. (Ans. 13). The Examiner also found the
attaching surface of Rouch's body "are the portions of the exposed surface
30 that face the exterior, as oriented in Figure 5." (Id.)
Appellants contend Rouch discloses that sheets 38 are attached to an
interior surface of wall member 30. (App. Br. 19-20). Rouch discloses that
the bottommost sheet 40 of the stack 36 of sheets 38 is attached to the wall
member 30. (Rouch, col. 2, ll. 33-38; Fig. 1). Figure 1 of Rouch shows the
device with stack 36 contained in an interior space of container 20 (see also,
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Rouch, col. 1, ll. 51-53), but does not show the sheets 38 attached to an
exterior surface of the container, as called for in claim 1. Figure 5 of Rouch
shows the device with stack 36 not contained in an interior space of the
container 20, and the surface of the wall member to which the stack attached
is an exterior surface. (See also, Rouch, col. 1, ll. 51-53). The Examiner has
not made a finding supported by a preponderance of the evidence that Rouch
discloses sheets 38 both contained in an interior space of the container 20
and an attaching surface at an exterior surface of the container 20 at the
same time. Thus, we reverse the anticipation rejection of claim 1 based on
Rouch, and claims 2, 7, 9, 14, 16, and 18 which depend from claim 1.

McKay - Claims 1, 10, 14, 17, 18, 20, 21, and 42
The Examiner found McKay discloses a container having a body (i.e.,
canister 130 and the cylindrical portion of cleaning tool 132 attached to
canister 130) containing cleaning wipes, and having an attaching surface
(i.e., uppermost surface of cleaning tool 132 or cleaning tool 134) where
wipes are attached. (Ans. 6, citing McKay, ¶ [0052]; see also McKay, Figs.
16A, 16B, 17, 18).
Appellants contend that McKay's container does not have an attaching
surface. (App. Br. 22-23). We understand Appellants' essential contention
is that McKay's canister 130 is a "container," and cleaning tool 132 is
attached to, but not part of, the "container." We agree.
We agree with the Examiner that McKay's canister 130 corresponds to
the claimed "body," and defines an interior containing wipes containing
cleaning wipes. (See McKay, ¶ [0052], which describes "a container of
cleaning wipes.") However, we agree with Appellants that McKay's
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cleaning tool 132 is not part of the body. Accordingly, we also agree with
Appellants that McKay's body does not have an attaching surface to which
the cleaning wipes are attached. Hence, we reverse the anticipation rejection
of claim 1 based on McKay, and claims 10, 14, 17, 18, 20, 21 which depend
from claim 1.
Regarding independent claim 42, the Examiner's findings and
Appellants' arguments for patentability are substantially similar to those
discussed supra with respect to claim 1. Hence, we also do not sustain the
rejection of claim 42.

Vosbikian and Kosaka - Claims 19, 44, and 46
The Examiner found Vosbikian does not disclose that its cleaning
sheets comprise a melamine-based foam configured to contact and clean a
surface, and a web attached to the foam and contiguous with the attaching
surface. (Ans. 7). The Examiner found Kosaka teaches a cleaning wipe
(i.e., wiper 1) that comprises a melamine-based foam 11 configured for
contacting and cleaning a surface, and a web (i.e., urethane sponge 12)
attached to the foam. (Ans. 7, citing Kosaka, Figs. 2A, 2B; see also Kosaka,
col. 11, ll. 7-13). The Examiner also found that Kosaka's cleaning
wipe/block may be only 1-3 mm thick, and used as disposable cleaners (Ans.
8, citing Kosaka, col. 11, ll. 35-47). The Examiner concluded that it would
have been obvious to one of ordinary skill in the art to substitute Vosbikian's
cleaning wipes for wipes or blocks taught by Kosaka, to provide a wipe that
has improved strength, good workability, resistance to moist heat aging, and
excellent dirt-removing ability without damaging the surface to be washed.
(Ans. 8).
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Appellants contend that one skilled in the art would not have replaced
Vosbikian's mop head with the foam wiper disclosed by Kosaka. (App. Br.
26). However, the Examiner's combination substitutes Vosbikian's cleaning
wipes, not the mop head, with Kosaka's wipes or blocks. (See also Ans. 16).
As such, the combination includes Kosaka's wipes or blocks attached to
Vosbikian's mop head. As Vosbikian's invention is a cleaning mop,
Appellants have provided no persuasive argument why the combination
would not be suitable for cleaning surfaces. Hence, Appellants' contention
that the combination would either destroy the intended purpose of each
invention, or change the principle of operation of Vosbikian, is not
persuasive. (See id.).
Appellants also contend that that one skilled in the art would not have
combined the references because Vosbikian's cleaning sheets can be
changed once soiled, but Kosaka's foam block cannot. (Id. at 27). However,
claim 19 does not require the cleaning wipe to be "detachable" from the
attaching surface. Appellants have not provided any persuasive argument or
evidence as to why one skilled in the art would have lacked sufficient skill to
attach Kosaka's wipes to Vosbikian's mop head to allow wipes to be replaced
with clean ones, or attach Kosaka's block to the mop head. (See id. at 28).
Appellants' contention that the Examiner's combination would result in
Vosbikian's device being limited to the lifespan of Kosaka's foam wiper is
also not persuasive. (Id.). Appellants have not demonstrated that the
Examiner's combination of teachings would have been uniquely challenging
to a person of ordinary skill in the art, and appears to be no more than
"substitution of one known [processing technique] for another" with
predictable results. See KSR Int'l. Co. v. Teleflex Inc., 550 U.S. 398, 420
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(2007). In addition, the Examiner has articulated an adequate reason why
one skilled in the art would have been motivated to make the combination.
See KSR, 550 U.S. at 418 (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006) ("[T]here must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.")). Thus, we
sustain the obviousness rejection of claims 19, 44, and 46 based on
Vosbikian and Kosaka.

Rejection of claim 10 as unpatentable over Vosbikian and Scott, rejection of
claim 13 as unpatentable over Vosbikian and Kaylor, and rejection of claims
21-23 as unpatentable over Vosbikian and Post
Claims 10, 13, and 21-23, respectively, depend directly or ultimately
from claim 1. Appellants do not present any specific arguments for
patentability for any one of these rejections, but merely rely on the
dependency of claims 10, 13, and 21-23 from claim 1 for patentability.
(App. Br. 30). However, because we find no deficiency in the Examiner's
rejection of claim 1 based on Vosbikian for reasons discussed supra, we also
sustain the rejections of claims 10, 13, and 21-23.

McKay and Kosaka - Claim 43
The Examiner relied on Kosaka to allegedly cure the deficiencies of
McKay with respect to claim 43. (Ans. 10-11). However, the Examiner's
application of Kosaka for claim 43 does not cure the deficiencies of the
Examiner's reliance on McKay with respect to claim 42, as discussed supra.
Hence, we do not sustain the rejection of claim 43.

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DECISION
1. The rejection of claims 1, 2, 7, 9, 14, 18, and 20 under
35 U.S.C. § 102(b) as anticipated by Vosbikian is AFFIRMED.
2. The rejection of claims 1, 2, 7, 14, 18, and 20 under 35 U.S.C.
§ 102(b) as anticipated by Mestral is REVERSED.
3. The rejection of claims 1, 2, 7, 9, 14, 16, and 18 under
35 U.S.C. § 102(b) as anticipated by Rouch is REVERSED.
4. The rejection of claims 1, 10, 14, 17, 18, 20, 21, and 42 under
35 U.S.C. § 102(e) as anticipated by McKay is REVERSED.
5. The rejection of claims 19, 44, and 46 under 35 U.S.C. § 103(a)
as unpatentable over Vosbikian and Kosaka is AFFIRMED.
6. The rejection of claim 10 under 35 U.S.C. § 103(a) as
unpatentable over Vosbikian and Scott is AFFIRMED.
7. The rejection of claim 13 under 35 U.S.C. § 103(a) as
unpatentable over Vosbikian and Kaylor is AFFIRMED.
8. The rejection of claims 21-23 under 35 U.S.C. § 103(a) as
unpatentable over Vosbikian and Post is AFFIRMED.
9. The rejection of claim 43 under 35 U.S.C. § 103(a) as
unpatentable over McKay and Kosaka is REVERSED.
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)(1)(iv).

AFFIRMED-IN-PART
JRG