Ex Parte McCutchan

Patent Trial and Appeal Board

May 25, 2016

11151774 (P.T.A.B. May. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111151,774 06/14/2005
27752 7590 05/27/2016
THE PROCTER & GAMBLE COMPANY
Global Patent Services - Legal IP
Central Building, CS
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Michael Dean McCutchan
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.
9672 4940
EXAMINER
COLLINS, RA VEN
ART UNIT PAPER NUMBER
3788
NOTIFICATION DATE DELIVERY MODE
05/27/2016 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 MICHAEL DEAN MCCUTCHAN
Appeal2014-005708
Application 11/151,774
Technology Center 3700
Before LYNNE H. BROWNE, JILL D. HILL, and LISA M. GUIJT,
Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Michael Dean McCutchan ("Appellant") appeals under 35 U.S.C.
§ 134 from the Examiner's decision rejecting claims 1-11 and 13-21. 1 We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Claim 12 is canceled.
Appeal2014-005708
Application 11/ 151, 77 4
CLAIMED SUBJECT MATTER
The claims are directed to a package for a personal care product.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A package for a personal care product, said package comprising:
a bottle;
a cap including an openable top, wherein said cap is
attached to said bottle; and
a shrink label, wherein said shrink label covers most of
said bottle and a gap between said bottle and said cap and
wherein said shrink label is non-removable and terminates
below said top such that said top of said cap is openable and
closable from outside of said shrink label without interference
from the shrink label that covers said gap.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Braun
Brozell
Fresnel
us 4,742,928
US 6,325,252 Bl
May 10, 1988
Dec. 4, 2001
US 2005/0249897 Al Nov. 10, 2005
REJECTIONS
I. Claims 1, 3-11, and 13-21 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Braun and Fresnel.
II. Claim 2 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Braun, Fresnel, and Brozell.
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Appeal2014-005708
Application 11/ 151, 77 4
OPfNION
Rejection I
Appellant argues claims 1, 3-11, and 13-21 together. See Br. 2--4.
We select independent claim 1 as the illustrative claim, and claims 3-11 and
13-21, stand or fall with claim 1.
The Examiner finds, inter alia, that Braun discloses a container, a
hinged closure cap, and a gap between the bottle the cap. Final Act. 3. The
Examiner determines that Braun fails to disclose a shrink label. The
Examiner further finds that Fresnel teaches a shrink label that covers the gap
and terminates below the top of the cap. Id. The Examiner reasons that it
would have been obvious to combine the references because "[ d]oing so
provides a shrink label that identifies and/or provides information regarding
the container contents and eliminates littering by partial or complete removal
of the shrink label in order to dispense the contents." Id.
Appellant does not contest the Examiner's findings. See Br. 2--4.
Rather, Appellant argues that one of ordinary skill in the art would not have
the requisite motivation to combine Braun and Fresnel to create the claimed
package. Br. 3. Appellant further argues that the combination of Braun and
Fresnel is based on impermissible hindsight reasoning and "the only[]
motivation to combine Braun and Fresnel is from the Applicants'
disclosure." Id. at 3.
In response to this argument, the Examiner finds that "both a
container and shrink wrap are two well-known objects in the art" and they
could have been combined to yield known results. Ans. 5. The Examiner
states that Fresnel could be used as the primary reference and Braun could
be the supporting reference. Id. Thus, the rejection proposes the substitution
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Appeal2014-005708
Application 11/ 151, 77 4
of Fresnel's cap for Braun's cap. In addition, the Examiner finds that the
cap in Fresnel and the cap in Braun are art-recognized equivalents. Id.
Based on these findings, the Examiner concludes that one of ordinary skill in
the art would have found it obvious to substitute the cap including an
openable top of Braun for Fresnel's cap. Id.
A prima facie conclusion of obviousness may be supported by a
showing that the claims are directed to a structure already known in the prior
art that is altered by the mere substitution of one element for another known
in the field, and such modification yields a predictable result. KSR Int 'l. Co.
v. Teleflex, Inc., 550 U.S. 398 (2007). As discussed supra, the Examiner has
shown that the bottle and the position of the shrink label relative to the bottle
and cap are well known in the art. Ans. 5 (citing Fresnel i-fi-12 and 3; Fig. 3).
The Examiner has also shown that the structure of Fresnel could be altered
by the mere substitution of the cap for another well-known cap including an
openable top (see Braun Figs. 1--4) to yield predictable results. Id.
Appellant has failed to show that these elements are not well-known in the
art or that the substitution of the cap of Fresnel for the cap of Braun would
do no more than yield predictable results. Thus, Appellant does not apprise
us of error.
We sustain the Examiner's decision rejecting claims 1, 3-11, and 13-
21.
Rejection II
Appellant argues that Brozell does not cure the deficiency in the
rejection of claim 1. See Br. 4. As we find no deficiency in the rejection of
claim, Appellant's argument is unconvincing.
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Appeal2014-005708
Application 11/ 151, 77 4
We sustain the Examiner's decision rejecting claim 2.
DECISION
The Examiner's rejections of claims 1-11and13-21 are 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)(l )(iv).
AFFIRMED
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