Medline Industries, Inc

Patent Trials and Appeals Board

Aug 17, 2021

2021000302 (P.T.A.B. Aug. 17, 2021)

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.
15/407,042 01/16/2017 Megan Henken BPMDL114MHP1C1
11399UP1C1
8640
27939 7590 08/17/2021
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
EXAMINER
FLETCHER, JERRY-DARYL
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
08/17/2021 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):
kberry@burrusiplaw.com
pburrus@burrusiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MEGAN HENKEN and STEVE MCNABB
Appeal 2021-000302
Application 15/407,042
Technology Center 3700
Before DANIEL S. SONG, EDWARD A. BROWN, and
CARL M. DEFRANCO, Administrative Patent Judges.
SONG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision to reject claims 1–4 and 6–15, which constitute all the
claims pending in this application. Claims 5 and 16–20 have been canceled.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). The Appellant identifies the real party in interest as
Medline Industries, Inc. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims are directed to a cleaning system and apparatus. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. An apparatus comprising one or more microfiber sheets
joined together at a spine to define a microfiber booklet, wherein
the microfiber booklet is color-coded to define a mnemonic
device identifying a room to be cleaned by the microfiber
booklet.
Appeal Br. 19 (Claims App.).
REFERENCES AND REJECTIONS
1. Claims 1–4, 6, 7, and 11–15 are rejected under 35 U.S.C. § 103
as being unpatentable over Williams (US 2014/0020710 A1, pub. Jan. 23,
2014). Non-Final Act. 2.
2. Claims 8–10 are rejected under 35 U.S.C. § 103 as being
unpatentable over Williams in view of Alsheimer (US 5,851,117, pub. Dec.
22, 1998). Non-Final Act. 6.
OPINION
Rejection 1: Williams
The Examiner rejects claims 1–4, 6, 7, and 11–15 as being
unpatentable over Williams. Non-Final Act. 2. As to independent claim 1,
the Examiner finds that Williams discloses microfiber sheets joined together
to define a microfiber booklet, including color-coding “to define a
mnemonic device (par. 0033: the booklet is color coded to indicate an order
of use, task or purpose. This is a mnemonic device that assists in
remembering).” Non-Final Act. 3 (citing Williams ¶ 33). The Examiner
also finds that Williams fails to explicitly disclose “that the task or purpose
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is a room to be cleaned,” but takes Official Notice that “it is old and well
known to clean rooms.” Non-Final Act. 3. The Examiner concludes that it
would have been obvious to one of ordinary skill in the art to have used the
color-coding to indicate the task for the microfiber booklet to be “a room to
be cleaned,” and that “[t]his would have yielded the predictable result of
using a cleaning implement to clean a room.” Non-Final Act. 3.
Claim 1
The Appellant argues that claim 1 requires “the color-coding of a
microfiber booklet, i.e., as a whole, provides a mnemonic device identifying
a single, specific thing, namely, a particular room, which is to be cleaned by
the microfiber booklet.” Appeal Br. 9 (citing Spec. ¶ 95); see also Reply
Br. 9. The Appellant argues that in contrast, Williams requires “individually
color-coding cloth panels of its bound cloth panel ‘to indicate the order in
which they are to be used or the task or purpose of use’” so as to allow the
cloth panels to be distinguished from one another. Appeal Br. 10 (citing
Williams ¶ 33), 12. According to the Appellant, claim 2 of Williams
“confirms that it is the cloth panels that are individually color-coded to
indicate order or task or purpose, not the bound book as a whole” (Appeal
Br. 10, 12 (citing Williams claim 2)), and that the proposed modification
“change[s] the principle of operation by eviscerating the ability to discern
one cloth panel from another” (Reply Br. 8).
These arguments are unpersuasive. Claim 1 does not recite that the
“whole” booklet is of the same color, and the limitation that “the microfiber
booklet is color-coded” can be reasonably interpreted to encompass a
booklet in which the cloth panels forming the booklet are color-coded. See
Ans. 7 (“the individual sheets are bound to make up the book, therefore, the
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coding of the sheets results in the coding of the book.”). The Appellant’s
general description in the Specification that “microfiber booklet 801 is
green” or blue does not require each and every microfiber cloth panel of the
booklet, i.e., the whole booklet, to be of the same color as the Appellant
asserts. For example, the first and last cloth panels of the microfiber booklet
may be green, and the intervening panels may be of a different color. In
such a construction, the microfiber booklet “is green” as disclosed in the
Specification. Thus, the Appellant’s argument based on its claim
interpretation is unpersuasive.
More importantly, even if the Appellant’s interpretation is applied,
such a microfiber booklet is nonetheless disclosed by Williams. See
Williams Fig. 1. In particular, Williams discloses that “[t]he cleaning and
polishing cloth consists of multiple bound cloth panels that may be
numbered, color coded or otherwise marked to indicate the order in which
they are to be used or the task or purpose of use.” Williams ¶ 33 (emphasis
added); see also Williams ¶ 48 (“Each of the panels can be visually
discriminated from the others by a plurality of indicia, consisting of
numbers, symbols, tabs, objects, colors, letters, tabs [sic], buttons, further
being in a recognizable sequence by the user or to indicate purpose or task
orientation.”). Indeed, claim 2 of Williams to which the Appellant refers, is
a dependent claim, and makes clear that color is only one of several different
types of indicia. Williams cl. 2. Thus, as the Examiner points out, Williams
discloses use of numbers, other marks, or color to indicate order of use of
the cloth panels, i.e., to distinguish one cloth panel from another.
Although the Appellant is correct that Williams teaches discrimination
of the cloth panels via colors, colors is merely one manner taught.
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Accordingly, the Appellant is incorrect in asserting that Williams requires
unique colors for each of the microfiber cloth panels, and not having such
unique colors would not allow the cloth panels to be distinguished and
change the principle of operation. Ans. 8. As the Examiner further explains,
in accordance with the teachings of Williams, “a uniform color could be
used and a different number or mark can be the visual discriminator.”
Ans. 8. In that regard, all cloth materials have some coloration, and
Williams teaches the alternative of using numbers or other indicia that would
distinguish cloth panels having the same color. Accordingly, the
Appellant’s arguments are unpersuasive because they do not consider the
full scope of the Williams’s disclosure.
The Appellant further argues that rejection is also improper based on
the claim recitation that “the microfiber booklet is color-coded to define a
mnemonic device identifying a room to be cleaned.” Appeal Br. 10, 19
(Claims App.). According to the Appellant, “[n]either Williams nor the
Official Notice teaches color-coding to distinguish one room from another,”
and the color coding of sheets disclosed in Williams in “no way identifies a
room to be cleaned.” Appeal Br. 11, 12. Based thereon, the Appellant
argues that the rejection “fails to explain how someone of ordinary skill in
the art would be able to identify which room a particular microfiber bound
cloth panel should clean.” Appeal Br. 11.
These arguments are also unpersuasive for various reasons. The
recited identification occurs in the mind of the user in remembering some
association between a color and a particular room, but such association is not
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something inherent to any given color.2 As noted above, all cloth material
will have some color. The user of the booklet can readily associate in their
mind, any attribute of the booklet, whether it be its color, its markings, its
shape, etc., as “identifying a room to be cleaned.” As also noted above,
Williams clearly teaches that color is one type of indicia or attribute, which
can be used to indicate “the task or purpose of use.” Williams ¶ 33. As
found by the Examiner, cleaning a room is a well-known task or purpose of
use. Non-Final Act. 3. Accordingly, we agree with the Examiner that
associating the color of the booklet to a particular room to be cleaned would
have been obvious, and the Appellant’s arguments “fail[] to account for the
combination of teachings in the rejection of the claim.” Ans. 8. The
Appellant seeks to patent a known device based on a user’s mental
association as to how/where the device should be used.
Thus, in view of the above considerations, we agree with the
Examiner that claim 1 is not patentable and affirm the rejection thereof.
With the exception of claims 6 and 7, which we address below, the
Appellant does not submit arguments specifically directed to the rejected
dependent claims. Accordingly, claims 2–4 and 11–15 fall with claim 1.
Claims 6 and 7
These claims recite that the microfiber booklet is “green” (claim 6) or
“blue” (claim 7). Appeal Br. 19 (Claims App.). The Examiner rejects these
claims finding that claimed colors are “nonfunctional descriptive material,”

2 Although unnecessary in reaching the present decision, we note that the
recitation “the microfiber booklet is color-coded to define a mnemonic
device identifying a room to be cleaned” also appears to raise at least the
issues of indefiniteness and enablement under 35 U.S.C. § 112.
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and concludes that it would have been obvious to one of ordinary skill in the
art to have “used any color with the booklets since the choice of any color is
merely printed matter on a substrate and the subjective interpretation of the
color does not patentably distinguish the claimed invention.” Non-Final
Act. 3–4; see also Ans. 9.
The Appellant argues that these claims are patentable due to their
dependency on claim 1. Appeal Br. 14. However, having found no
deficiency in the rejection of claim 1, this argument is unpersuasive. The
Appellant also argues that these claims are patentable because they “add[]
the limitation that the microfiber booklet is uniformly a singular color,”
whereas Williams teaches color-coding cloth so that they can be
distinguished from one another. Appeal Br. 14. However, this argument is
also unpersuasive for the reasons already discussed
The Appellant further argues that “color is indeed functional, as the
green color can immediately identify that the microfiber booklet is for
cleaning a bathroom as indicated in the specification at paragraph [094].”
Appeal Br. 15. However, as already discussed above, the recited
identification occurs in the mind of the user, and is not something inherent to
any given color. Green does not somehow “immediately identify” a
bathroom. The Appellant also submits other unpersuasive arguments similar
to those submitted relative to claim 1. Appeal Br. 15.
Therefore, we affirm the rejection of claims 6 and 7 as well.

Rejection 2: Williams in view of Alsheimer
Claims 8–10 are rejected as being unpatentable over Williams in view
of Alsheimer. Non-Final Act. 6. Claim 8 depends from claim 1, and recites
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“further comprising a teaching insert comprising indicia comprising an
instruction to use a first sheet of the microfiber booklet first,” while claims 9
and 10 depend from claim 8. Appeal Br. 19 (Claims App.). The Examiner
finds that Williams fails to disclose the recited teaching insert, but relies on
Alsheimer for disclosing a teaching insert. Non-Final Act. 6 (citing
Alsheimer col. 4, l. 58–col. 5, l. 16). The Examiner concludes that it would
have been obvious to one of ordinary skill “to have supplemented Williams
with instructions, as taught by Alsheimer, in order to provide a user with
guidance for proper cleaning.” Non-Final Act. 6.
The Appellant argues that these claims are patentable due to their
dependency on claim 1, and asserts that Alsheimer fails to correct the
deficiency of Williams. Appeal Br. 16. However, having found no
deficiency in the rejection of claim 1, these arguments are unpersuasive.
The Appellant also argues that “Alsheimer is wholly silent regarding
microfiber booklets,” that Alsheimer “merely teaches instructions for
dusting,” and Williams fails to disclose or suggest a teaching aid. Appeal
Br. 16. However, the Appellant argues references individually whereas the
rejection is based on the combination of Williams and Alsheimer. In re
Merck, 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.”). As the Examiner
explains,
Alsheimer teaches, in a related art, the use of instructions for a
cleaning apparatus. Therefore . . . it would have been obvious to
one possessing ordinary skill in the art . . . to have supplemented
Williams with the guidance of Alsheimer in order to yield the
predictable result of providing guidance to a user for proper
cleaning.
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Ans. 10.
The Appellant also asserts that the Examiner “appears to change the
rejection of claim 8” because the Answer newly relies on the Official Notice.
Reply Br. 9. However, this argument is without merit because as the
Examiner explains, “the statement of the rejection of claim 8 uses the
rejection of claim 1 as an antecedent basis.” Ans. 9; see also Non-Final Act.
6 (“Claims 8-10 are rejected under 35 U.S.C. [§]103 as being unpatentable
over Williams as applied to claim 1 above, and further in view of US
5,851,117 (Alsheimer).”).
The Appellant further argues that the Examiner “failed to articulate,
with a rational underpinning tied to the references, how ‘the use of
instructions for a cleaning apparatus’ provides a teaching of using ‘a first
sheet of the microfiber booklet first.’” Reply Br. 11. The Examiner is
required to articulate a reason for modifying a reference but no such
modification is required. It cannot be disputed that instructions begin from
step 1 such that it is simply common sense, logical, and obvious, that the
instructions for the apparatus of Williams would have instructed users to use
the cloth panel numbered “1” (i.e., the first sheet of the microfiber booklet)
of Williams first. Williams Fig. 1.
Therefore, we affirm the rejection of claims 8–10.
CONCLUSION
The Examiner’s rejections are affirmed.
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10
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–4, 6, 7,
11–15
103 Williams 1–4, 6, 7,
11–15

8–10 103 Williams,
Alsheimer
8–10
Overall
Outcome
1–4, 6–15

TIME PERIOD FOR RESPONSE
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