Ex Parte Trombley et al

Patent Trial and Appeal Board

Oct 19, 2018

14065635 (P.T.A.B. Oct. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/065,635 10/29/2013
27752 7590 10/23/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Kurt Franklin Trombley
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.
12636M 7078
EXAMINER
PERREAULT, ANDREW D
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
10/23/2018 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):
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 KURT FRANKLIN TROMBLEY, KELLY LYNN MORRISON,
DAVID EDWARD BURBRINK, and
CHRISTOPHER MICHAEL KOMNENOVICH
Appeal 2017-011167
Application 14/065,635
Technology Center 3700
Before STEFAN STAICOVICI, JEFFREY A. STEPHENS, and
BRENT M. DOUGAL, Administrative Patent Judges.
ST AI CO VICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE-
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision in the Final Office Action (dated Nov. 22, 2016, hereinafter "Final
Act.") rejecting claims 2, 4, 5, 9-12, 19-22, and 26. 2 We have jurisdiction
over this appeal under 35 U.S.C. § 6(b).
1 Appellant is the Applicant, The Procter & Gamble Company, identified by
the Appeal Brief (filed Dec. Apr. 9, 2017, hereinafter "Br.") as the real party
in interest. Br. 1.
2 Claims 1, 3, 6-8, 13-18, 23-25, and 27-31 are canceled. See Amendment
after Final Office Action 5 (filed Jan. 23, 2017, hereinafter "Amendment").
The Examiner entered the Amendment in the Advisory Action of Feb. 3,
2017 (hereinafter "Adv. Act.").
Appeal 2017-011167
Application 14/065,635
We AFFIRM.
SUMMARY OF DECISION
INVENTION
Appellant's invention relates "to child-resistant sachets that contain[]
a single dose of liquid medication." Spec. 1, 1. 8.
Claim 9, the sole independent claim, is representative of the claimed
invention and reads as follows:
9. A child resistant sachet comprising:
a. a top portion, a bottom portion, and a perimeter,
the top portion having a narrowed region, the perimeter
defining a tab that smoothly and curvedly extends the perimeter
outwardly from the narrowed region away from a fold line,
wherein the tab comprises a continuous arch that is convex
relative to the fold line, wherein a transition is positioned
between the bottom portion and the tab and the transition is a
continuous arch, and a tear notch that intersects the fold line,
wherein the tear notch does not extend to the perimeter;
b. a front layer and a back layer, wherein the front
layer and the back layer comprise a multi-layer laminate and are
permanently joined around the perimeter to form a seal
bounded by an inner seal edge and the perimeter, the seal
defining a compartment wherein the compartment has a
headspace; wherein the front layer comprises a front outer
layer, a front second layer, a front third layer, and a front inner
layer; wherein the front second layer is adjacent to the front
outer layer and the front third layer and the front third layer is
adjacent to the front inner layer; wherein the back layer
comprises a back outer layer, a back second layer, a back third
layer, and a back inner layer; wherein the back second layer is
adjacent to the back outer layer and the back third layer and the
back third layer is adjacent to the back inner layer; wherein the
front inner layer and the back inner layer are joined at the seal;
wherein the front outer layer and the back outer layer comprise
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Application 14/065,635
polyethylene terephthalate; wherein the front second layer and
the back second layer comprise oriented polyamide; wherein
the front third layer and back third layer comprise aluminum;
wherein the front inner layer and back inner layer comprise
linear low-density polyethylene; and
c. a single dose of a liquid medication contained in
the compartment.
REJECTIONS 3,4
I. The Examiner rejects claims 2, 4, 5, 9--12, 19--22, and 26 under 35
U.S.C. § I03(a) as being unpatentable over Chan et al. (US 5,529,224,
issued June 25, 1996, hereinafter "Chan"), Svec et al. (US 5,938,032,
issued Aug. 17, 1999, hereinafter "Svec"), and Caldwell et al. (US
2010/0270330 Al, published Oct. 28, 2010, hereinafter "Caldwell").
II. The Examiner rejects claims 2, 4, 5, 9--12, 19--22, and 26 under 35
U.S.C. § I03(a) as being unpatentable over Chan, Schneider et al. (US
3,224,640, issued Dec, 21, 1965, hereinafter "Schneider"), and
Caldwell.
III. The Examiner rejects claims 2, 4, 5, 9--12, 19--22, and 26 under 35
U.S.C. § I03(a) as being unpatentable over Chan, Svec, Grosskopf
(US 2007/0187273 Al, published Aug. 16, 2017), and Caldwell.
3 The Examiner's rejections of claims 27, 28, 30, and 31 are moot in light of
Appellant's cancellation of these claims and, thus, are not part of the instant
appeal. See Amendment 5; Adv. Act. 1.
4 The Examiner's rejections of claims 2, 4, 5, 9--12, 19--22, and 26 under 35
U.S.C. § 112, first and second paragraphs, as failing to comply with the
written description requirement and being indefinite, respectively, are
withdrawn by the Examiner. See Adv. Act. 1; see also Final Act. 2---6.
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Application 14/065,635
IV. The Examiner rejects claims 2, 4, 5, 9-12, 19-22, and 26 under 35
U.S.C. § 103(a) as being unpatentable over Chan, Schneider,
Geasland (US 4,779,736, issued Oct. 25, 1988), and Caldwell.
V. The Examiner rejects claims 2, 4, 5, 9-12, 19-22, and 26 under 35
U.S.C. § 103(a) as being unpatentable over Chan, Svec, Levey (US
8,167,162 B2, issued May 1, 2012), and Caldwell.
VI. The Examiner rejects claims 2, 4, 5, 9-12, 19-22, and 26 under 35
U.S.C. § 103(a) as being unpatentable over Chan, Schneider, Loyd et
al. (US 7,422,105 B2, issued Sept. 9, 2008, hereinafter "Loyd"), and
Caldwell.
VII. The Examiner rejects claim 4 under 35 U.S.C. § 103(a) as being
unpatentable over any of the combinations of rejections I through VI
and in further view of Loyd. 5
VIII. The Examiner rejects claim 26 under 35 U.S.C. § 103(a) as being
unpatentable over any of the combinations of rejections I through VI
and in further view of Hemmerlin et al. (US 8,251,217 B2, issued
Aug. 28, 2012, hereinafter "Hemmerlin").
ANALYSIS
Rejection I
Appellant has not presented arguments for the patentability of claims
2, 4, 5, 10-12, 19-22, and 26 apart from claim 9. See Br. 5-8. Therefore, in
accordance with 37 C.F.R. § 4I.37(c)(l)(iv), we select claim 9 as the
5 We note that Rejection VI, upon which the Examiner depends thereon for
Rejection VII, already includes the disclosure of Loyd.
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Application 14/065,635
representative claim to decide the appeal of the rejection of these claims,
with claims 2, 4, 5, 10-12, 19--22, and 26 standing or falling with claim 9.
The Examiner finds that the combined teachings of Chan and Svec
disclose "the claimed invention ... with the exception of ... multi-layer
laminates comprising polyethylene terephthalate, oriented polyamide,
polyethylene vinyl acetate/LLDPE, and aluminum," which Caldwell
discloses. Final Act. 9 ( citing Caldwell, para. 16). According to the
Examiner, "Caldwell discloses outer layers of PET (claims 24, 54), second
layer ofpolyamide (claims 24, 54), third layer of AL (claims 27, 57), [and]
inner layers ofLLDPE (claims 27, 57)." Id.; see also Adv. Act. (citing
Caldwell, para. 19).
Appellant argues that paragraph 19 of Caldwell "does not disclose,
teach or suggest the particular order of the layers and materials recited in
independent claim 9." Br. 7 (underlining omitted). According to Appellant,
"Chan in view of Caldwell would not lead one of skill in the art to select the
particular material and order of the layers in the multilayer laminate"
because "there are more than 5,985 possible combinations of four materials
[ selected] from the list in Caldwell." Id.
In response, the Examiner notes that there is no criticality to the
claimed combination of materials and number of layers because the
Specification describes the use of different materials and number of layers.
Examiner Answer 32 (dated May 25, 2017, hereinafter "Ans.") (citing Spec.
8, 11. 4--7, 14--16). The Examiner further notes that the claimed laminate is a
known, commercially available laminate. Id. at 32-33 ( citing Spec. 6, 11.
19--31 ). Thus, according to the Examiner, as Caldwell discloses "a finite
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number of combinations of the listed materials (including PET, polyamide,
AL, LLDPE)," it would have been obvious to a person of ordinary skill in
the art to "try the different possibility of combinations to arrive at a
particular desired strength." Id. at 34. Furthermore, as the "laminates are
already known" and "depending on the needs of ... [a] user," the Examiner
determines that "the user would select the combination of materials ... that
would provide the desired strength to open in combination with the desired
degree of protection for the intended contents." Id. at 34--35.
Caldwell discloses a multi-layered packaging laminate that can be
made from
polyethylene terephthalate (PET), amorphous polyethylene
terephthalate (APET), oriented polyethylene terephthalate
(OPET), metalized polyethylene terephthalate (MET-PET),
polyethylene (PE), low density polyethylene (LDPE), linear
low density polyethylene (LLDPE), metalocene linear low
density polyethylene (mLLDPE), high density polyethylene
(HDPE), metalocene polyethylene (mPE), ethylene vinyl
acetate (EV A), polypropylene (PP), metalized oriented
polypropylene (mOPP), polystyrene (PS), high impact poly-
styrene (HIPS),foil, ethylene vinyl alcohol (EVOH), polya-
mide, Nylon, polyvinyl chloride (PVC), biaxially oriented
materials.
While the container portion may comprise a single layer of
material, the container portion may also be fabricated of
multiple layers bonded, coextruded or otherwise formed
together into a cohesive structure, where one or more of the
layers is selected from the group of materials set forth above.
Caldwell, para. 16 ( emphasis added); see also id. at 19. As such, we agree
with the Examiner's finding that Caldwell discloses the four materials
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forming the multi-laminate of claim 9, namely, PET, polyamide, foil 6
(aluminum), and LLDPE. See Final Act. 9.
However, "'obvious to try' is erroneously equated with obviousness
under§ 103 ... when what would have been 'obvious to try' would have
been to vary all parameters or try each of numerous possible choices until
one possibly arrived at a successful result, where the prior art gave either no
indication of which parameters were critical or no direction as to which of
many possible choices is likely to be successful." In re Kubin, 561 F.3d
1351, 1359 (Fed. Cir. 2009) (citing In re O'Farrell, 853 F.2d 894,903 (Fed.
Cir. 1988)). Here, Caldwell's exhaustive list of materials that results in
5,985 possible combinations of a four layered laminate fails to provide
sufficient guidance to a person of ordinary skill in the art with respect to the
particular materials, order, and number of layers in the multilayer laminate
that would lead to success amongst the many possible choices recited in
Caldwell. Furthermore, we note that the Examiner's rejection does not
indicate that a skilled artisan would be aware of the stresses to which various
layers of the laminate are subjected, in order adequately select the claimed
materials, order, and number of layers to accommodate such stresses. See In
re Hopkins, 342 F.2d 1010 (CCPA 1965).
Nonetheless, we note that in Appellant's Specification, after
describing the laminate structure of claim 9 (shown in Figure 2), the
Specification immediately states that "exemplary laminates are
commercially available from Amcor®, Mundelein, Illinois[.]" Spec. 6, 11.
6 "Where foil is used, that foil may be an aluminum foil, or other metal foil."
Caldwell, para. 73.
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19--31, Fig. 2. Accordingly, like the Examiner, we interpret this statement to
mean that laminates having the structure recited in claim 9 are known and
commercially available from Amcor®. 7 See Ans. 32, 34 ("Appellant has
identified that such laminates are known."). Given that the laminates of
claim 9 are known and commercially available from Amcor®, a skilled
artisan would then have sufficient guidance from such known laminates to
choose the particular materials, order, and number of layers amongst the
many possible choices recited in Caldwell to form a multilayered laminate,
as called for by claim 9, that would lead to success. Hence, choosing the
specific laminate having the materials, order, and number of layers, recited
in claim 9, is "the product not of innovation but of ordinary skill." KSR Int 'l
Co. v. Teleflex Inc., 550 U.S. 398,421 (2007).
Lastly, Appellant argues that "the Office Action provides no
motivation to combine the specific elements of the claimed invention to
obtain the right combination of elements that would provide a sachet that is
resilient enough to be child resistant, while still being easy for adults to open
without scissors and withstand everyday stress." Br. 5-6.
We are not persuaded by Appellant's conclusory argument because it
ignores and fails to point out the error in the reasoning provided by the
Examiner in making the rejection. See Final Act. 6-9; Ans. 26-30. In other
7 The Examiner is on solid footing to shift the burden to Appellant to show
that laminates having the structure recited in claim 9 are not known and
commercially available from Amcor®. See In re Spada, 911 F.2d 705, 708
(Fed. Cir. 1990).
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words, Appellant has not set forth reasoning or established contrary factual
findings undermining the Examiner's conclusion.
Accordingly, for the foregoing reasons, we sustain the rejection of
claim 9 under 35 U.S.C. § 103(a) as unpatentable over Chan, Svec, and
Caldwell. Claims 2, 4, 5, 10-12, 19--22, and 26 fall with claim 9.
Rejections II-VIII
Appellant does not present any other substantive arguments with
respect to Rejections II through VIII, but rather relies on the arguments
discussed supra. See Br. 5-8. Therefore, for the same reasons discussed
above, we also sustain Rejections II though VIII.
SUMMARY
The Examiner's decision to reject claims 2, 4, 5, 9--12, 19--22, and 26
under 35 U.S.C. § 103(a) is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
9