Ex Parte Thoresen et al

Patent Trial and Appeal Board

Jul 24, 2018

13921896 (P.T.A.B. Jul. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/921,896 06/19/2013
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
Rhiannon Lynn Thoresen
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.
64920762US01 6522
EXAMINER
RANDALL, JR., KELVIN L
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 RHIANNON LYNN THORESEN,
TERRIL YNN MEISEL, REBECCA CATHERINE MOHR,
KAREN MARIE MENARD,
CHRISTOPHER MICHAEL BECHYNE,
JENNIFER LAUREL NOBUI, RYAN LESLIE FULSCHER,
JONATHAN ADAM DIEN, and
JENNIFER LEE SCHIFFMAN
Appeal2017-010262 1
Application 13/921, 896
Technology Center 3600
Before MURRIEL E. CRAWFORD, MICHAEL W. KIM, and
PHILIP J. HOFFMANN, Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
1 The Appellants identify Kimberly-Clark Worldwide, Inc. as the real party
in interest. Appeal Br. 1.
Appeal2017-010262
Application 13/921,896
STATEMENT OF THE CASE
This is an appeal from the final rejection of claims 12-18. We have
jurisdiction to review the case under 35 U.S.C. §§ 134 and 6.
The invention relates generally to a "refillable dispenser for pre-
moistened wipes." Spec. 1, lines 33-34.
Claim 12, the only independent claim on appeal, is illustrative:
12. A refillable dispenser for pre-moistened wipes, the
dispenser defining a length dimension and a width dimension,
the dispenser comprising a flexible pouch having a top and a
bottom spaced apart in the width dimension, the bottom
terminating at a bottom edge, the pouch having a front wall, a
back wall, and an interior space between the front wall and the
back wall,
the dispenser comprising a dispensing opening formed in
the front wall, the dispensing opening having a dispensing
opening width that extends in the width dimension, the
dispensing opening defining a midpoint along its width, the
dispenser further comprising a movable cover adapted to cover
the dispensing opening,
the dispenser comprising a seam extending generally in
the length dimension and disposed generally at the pouch top,
wherein the seam can be opened to an open position and resealed
to a closed position to connect the front wall to the back wall, the
open position configured to define a refill opening, the seam
defining an seam inner edge and a seam outer edge,
wherein the midpoint of the dispensing opening is
disposed closer to the bottom edge than to the seam inner edge,
wherein the front wall and the back wall are each formed
of a flexible material having a bending resistance of between
about 40 milligrams of force and 150 milligrams of force,
wherein the flexible material has a thickness of between
about 8 mils and about 15 mils,
and wherein the dispensing opening is surrounded by a
rigid ring, the cover being hingedly attached to the ring.
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Appeal2017-010262
Application 13/921,896
Claims 12-15 and 18 are rejected under 35 U.S.C. § 103 as
unpatentable over Bando (US 7,416,083 B2, iss. Aug. 26, 2008) and Huang
et al. (US 6,766,919 B2, iss. July 27, 2004) (hereinafter "Huang").
Claims 16 and 17 are rejected under 35 U.S.C. § 103 as unpatentable
over Bando, Huang, and Garger (US 2008/0044110 Al, pub. Feb. 21, 2008).
We AFFIRM.
ANALYSIS
The Examiner finds Bando discloses the dispenser substantially as
claimed, but fails to limit the bending resistance and thickness characteristics
of the flexible material to the ranges claimed. The Examiner finds Huang
discloses a dispenser using a flexible sheet that has a material with bending
resistance and thickness characteristics that encompass the ranges claimed.
We are not persuaded by the Appellants' argument that Huang fails to
disclose that the material used for the orifice portion of the dispenser could
be used for the main body of the dispenser. Appeal Br. 3. Huang
specifically discloses "as seen in FIG. 3, the sheet [22] could be generally
the same material as the dispenser." Huang col. 6, lines 9-12 (cited at Final
Act. 2).
We are equally unpersuaded by the Appellants' argument that, even
though Huang discloses that the flexible orifice sheet 22 could be made from
the same material as the body of the dispenser, Huang fails to disclose the
reverse: that the main body could be made from the same material as the
flexible orifice sheet 22. Appeal Br. 4. If the main body and orifice are
made of the same material, we discern no substantive difference between the
orifice being made of the same material as the body, and the body being
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Appeal2017-010262
Application 13/921,896
made of the same material as the orifice. In both cases, both the body and
orifice could be made of the same material.
In addition, the primary difference between the disclosure of Bando,
and the claimed invention, is that Bando does not limit the material
properties of the flexible material, but the claims limit them to particular
ranges. See Final Act. 4. Therefore, at a minimum, Bando's broad range of
bending resistance and thickness encompass the claimed ranges for these
material properties, and Bando alone meets the claim language.
Although not argued by the Appellants, even if the key feature of the
claimed invention is the narrowing of the ranges of acceptable material
properties, the
law is replete with cases in which the difference between the
claimed invention and the prior art is some range or other
variable within the claims. . . . [I]n such a situation, the applicant
must show that the particular range is critical, generally by
showing that the claimed range achieves unexpected results
relative to the prior art range.
In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990).
The Appellants have not shown the criticality of the two ranges, or
any unexpected results. For example, the Appellants observe that the main
drawback of available flexible dispensers is that they are not refillable.
Spec. 1, lines 22-29. The Specification describes no particular criticality to
the thickness, and describes several desirable features discovered when the
bending resistance is between 60 and 90 mg of force ( which is narrower than
the range claimed), including:
the pouch 30 is durable, is perceived as being high in quality, is
efficiently processable, is reasonable in cost, in particular
embodiments exhibits minimal "crinkling" noise as it is
manipulated, and is flexible enough to bend to fit into a purse,
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Appeal2017-010262
Application 13/921,896
diaper bag, or similar container, and will, furthermore, become
thinner / shrink in volume as the wipe supply is depleted.
Spec. 4, line 30 to 5 line 2. Although these properties may be desirable, we
do not discern that they are critical to make a flexible dispenser refillable.
Instead, the seamed refill opening of the claims appears to be the feature that
solves the key drawback observed by the Appellants from amongst available
flexible dispensers.
For these reasons, the Appellants have not shown sufficiently any
error on the part of the Examiner in rejecting claim 12 as obvious.
Therefore, we sustain the Examiner's rejection of claim 12, as well as of
claims 13-15 and 18, which were rejected along with claim 12 and not
argued separately. We also sustain the rejection of claims 16 and 17, which
were not argued separately by the Appellants.
DECISION
We affirm the rejections under 35 U.S.C. § 103 of claims 12-18.
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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