Ex Parte Lewis et al

Patent Trial and Appeal Board

Nov 18, 2013

11611242 (P.T.A.B. Nov. 18, 2013)

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.
11/611,242 12/15/2006 Richard Paul Lewis 64123227US02 4075
23556 7590 11/19/2013
KIMBERLY-CLARK WORLDWIDE, INC.
Tammi Langin
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
JACYNA, J CASIMER
ART UNIT PAPER NUMBER
3754
MAIL DATE DELIVERY MODE
11/19/2013 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 PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte RICHARD PAUL LEWIS, PAUL FRANCIS TRAMONTINA,
and VICTOR SCOTT SHOAF
____________________

Appeal 2011-012523
Application 11/611,242
Technology Center 3700
____________________

Before NINA L. MEDLOCK, JAMES A. TARTAL, and
PHILIP J. HOFFMANN, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-012523
Application 11/611,242

2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1-4, 7-11, 13-16, 19-23, 25, 26, 28-32, and 34-36.1 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The rejected claims are directed to a dispenser for dispensing soap and
grit, which may be used for hand washing (Spec. 1). Claims 1, 13, and 25
are the only independent claims.
EXEMPLARY CLAIM
Claim 1, reproduced below, is representative of the claims on appeal.
1. A dispenser for dispensing soap and grit,
the dispenser comprising:
a housing formed to include an internal
compartment, the housing comprising a push
button and at least one exit port, the internal
compartment configured to hold a soap cartridge
and a grit solution cartridge;
a pair of pumps, one pump positioned in
liquid communication with the soap cartridge and
another pump positioned in liquid communication
with the grit solution cartridge, each pump having
a dispensing opening, the soap cartridge and the
grit solution cartridge positioned in the internal
compartment of the housing, a portion of each
pump positioned adjacent to the push button such

1 Our decision will refer to Appellants’ Specification (“Spec.,” filed
December 15, 2006) and Appeal Brief (“Br.,” filed April 13, 2011), as well
as the Examiner’s Answer (“Ans.,” mailed May 20, 2011).

Appeal 2011-012523
Application 11/611,242

3
that when the push button is pushed by a user, both
pumps are simultaneously actuated and the soap
solution and grit solution are dispensed
simultaneously through each respective dispensing
opening of each pump and expelled from the
housing through the at least one exit port of the
housing such that both foamed soap and grit
solution are separately dispensed simultaneously
onto a user’s hand.

THE REJECTIONS
The Examiner rejects the claims as follows:
Claims 1-4, 13-16, 25, 26, and 34-36 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Ophardt’600 (US 2005/0205600 A1, pub. Sep.
22, 2005) in view of Ophardt’360 (US 5,975,360, iss. Nov. 2, 1999);
claims 1-4, 7-9, 11, 13-16, 19-21, 23, 25, 26, 28-30, 32, and 34-36 are
rejected under 35 U.S.C. § 103(a) as unpatentable over Ophardt’600 in view
of Ophardt’360, and further in view of Matthews (US 2005/0258192 A1,
pub. Nov. 24, 2005); and
claims 10, 22, and 31 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Ophardt’600 in view of Ophardt’360 and Matthews, and
further in view of James (US 6,358,898 B1, iss. Mar. 19, 2002).
ANALYSIS
We first consider the rejection of independent claims 1, 13, and 25, as
well as claims 2-4, 7-9, 11, 14-16, 19-21, 23, 26, 28-30, 32, and 34-36
Appeal 2011-012523
Application 11/611,242

4
depending therefrom, based on Ophardt’600, Ophardt’360, and Matthews.2
In response to the rejection, Appellants argue the combination of references
does not teach the limitation, “both foamed soap and grit solution are
separately dispensed simultaneously onto a user’s hand,” as required by
claim 1, and the similar limitations of independent claims 13 and 25 (Br. 6).
Specifically, Appellants argue:
[T]here is a critical difference between the
claimed invention and the teaching of Matthews et
al. Specifically, Figs[.] 5 and 11 of Matthews et al.
is [sic] a schematic of the dispenser taught in the
patent. It is noted that the soap in container 100
and the particles of container 110 are mixed
together prior to dispensing to a user’s hand. See
paragraphs 40, 41[,] which clearly state that
particle solution and the soap solution are mixed in
the conduit 120 in the embodiment of FIG[.] 5 and
paragraphs 59 and 60 for FIG[.] 11. Therefore,
Matthews et al. clearly lacks the teaching of
placing a separate grit solution and a separate soap
solution in the hand of a user simultaneously.
Matthews et al. actually teaches away from the
present invention since Matthews et al. directs one
skilled in the art to mix the soap solution and grit
solution prior to dispensing (id.).
In response, the Examiner states, “Appellant contends that the outlet
15 of Matthews combines . . . [the grit and soap] prior to dispensing.
However, the rejection states that it would be obvious to modify the
pumping structure of Ophardt’600 and not the outlet” of Matthews (Ans.

2 Because we sustain a rejection of every claim based on combinations of
Ophardt’600, Ophardt’360, Matthews, and James, we do not find it
necessary to consider the rejection based only on Ophardt’600 and
Ophardt’360.
Appeal 2011-012523
Application 11/611,242

5
10). Elsewhere the Examiner states that Ophardt’600 teaches an outlet
where “both the soap and the grit [are] separately dispensed onto a user’s
hand” (Ans. 5). Appellants did not file a Reply Brief responding to these
points raised by the Examiner. Thus, Appellants have not submitted any
arguments or evidence addressing why the Examiner’s combination of
Ophardt’600 and Matthews is unreasonable, in which the Examiner replaces
the pump of Ophardt’600 with the dual pumps of Matthews but retains the
outlet of Ophardt’600, which dispenses soap and grit separately and
simultaneously. Therefore, we are not persuaded by Appellants’ argument
that the Examiner erred.
With respect to Appellants’ argument that Matthews teaches away
from the combination, we note that “[t]he prior art’s mere disclosure of more
than one alternative does not constitute a teaching away from any of these
alternatives because such disclosure does not criticize, discredit, or
otherwise discourage the solution claimed in the . . . application.” In re
Fulton, 391 F.3d 1195, 1201, (Fed. Cir. 2004). In this case, we note that
Appellants have not pointed to anything in Matthews that criticizes,
discredits, or discourages dispensing soap and grit separately and
simultaneously. Therefore, we are not persuaded by Appellants’ argument
that the Examiner erred.
We are also not persuaded by Appellants’ other arguments regarding
these claims. In particular, Appellants argue:
In the rejection, the Examiner states that the
soap pump 20 and the grit pump 22 [in Matthews]
are shown to have completely separate pistons
form [sic] one another. However, pump 22 is not a
Appeal 2011-012523
Application 11/611,242

6
grit pump as the Examiner states. Instead, pump
22 is an air pump, (See paragraph 37 of Matthews
et al.)[.] The Examiner’s rejection incorrectly
characterizes the Matthews et al. reference (Br. 6).
We note, however, that the Examiner does not rely on any soap pump
20 or grit pump 22 of Matthews in the rejection, but instead on “soap and
grit pumps 104, 114” (Ans. 8). Appellants further argue:
Regarding claims 7-9, 11, 19-21, 23, 28-30
and 32, the Examiner relies upon paragraphs 81-88
of Matthew[s]. Appellants agree that grit solutions
having water, polyethylene and a thickener are
generally known as is shown by Matthews.
However, Matthews et al. fails to remedy the
deficiencies Ophardt et al. ‘600 and Ophardt et al.
‘360, with respect to having separate pumps[,]
which separately dispense soap and grit as separate
solutions into the hands of a user, as is stated
above (Br. 6-7).
Nevertheless, as discussed above, Appellants have not submitted any
arguments or evidence at all addressing the Examiner’s combination of
Ophardt’600 and Matthews.
Based on the foregoing, we sustain the Examiner’s rejection of claims
1-4, 7-9, 11, 13-16, 19-21, 23, 25, 26, 28-30, 32, and 34-36 under 35 U.S.C.
§ 103(a) as unpatentable over Ophardt’600, Ophardt’360, and Matthews.
Appellants separately argue the rejection of dependent claims 10, 22,
and 31, which is based on Ophardt’600, Ophardt’360, Matthews, and James
(Br. 7). However, because Appellants only argue that James does not
remedy the deficiency of Ophardt’600, Ophardt’360, and Matthews, as
James does not teach simultaneously and separately dispensing soap and
Appeal 2011-012523
Application 11/611,242

7
grit, we are not persuaded by Appellants’ argument. Therefore, we sustain
the rejection of claims 10, 22, and 31 based on Ophardt’600, Ophardt’360,
Matthews, and James.
DECISION
The rejection of claims 1-4, 7-9, 11, 13-16, 19-21, 23, 25, 26, 28-30,
32, and 34-36 under 35 U.S.C. § 103(a) as unpatentable over Ophardt’600,
Ophardt’360, and Matthews is AFFIRMED.
The rejection of claims 10, 22, and 31 under 35 U.S.C. § 103(a) as
unpatentable over Ophardt’600, Ophardt’360, Matthews, and James 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED

llw