Ex Parte Cote

Patent Trial and Appeal Board

Aug 30, 2017

13734373 (P.T.A.B. Aug. 30, 2017)

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.
13/734,373 01/04/2013 Christopher W.E. Cote 210181.404 5151
500 7590 08/30/2017
SFFD TNTFT T FFTT TAT PROPFRTY T AW GROT TP T T P
EXAMINER
701 FIFTH AVE NGUYEN, KIEN T
SUITE 5400
SEATTLE, WA 98104 ART UNIT PAPER NUMBER
3711
MAIL DATE DELIVERY MODE
08/30/2017 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 CHRISTOPHER W.E. COTE
Appeal 2016-001444
Application 13/734,373
Technology Center 3700
Before: LYNNE H. BROWNE, JEFFREY A. STEPHENS, and
BRENT M. DOUGAL, Administrative Patent Judges.
DOUGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a final rejection of
claims 1—4, 6, 7, 9-18, and 20 under 35 U.S.C. § 103(a) as being
unpatentable over Hidalgo (US 6,805,607 B2, iss. Oct. 19, 2004) and Lee
(US 6,012,963, iss. Jan. 11, 2000). We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
Appeal 2016-001444
Application 13/734,373
CLAIMED SUBJECT MATTER
The claims are directed to scented stuffed toys and a method of
making the same. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A stuffed toy comprising:
a body comprised of a plush material and having an
internal cavity;
a filler material within the internal cavity of the body,
wherein the filler material includes a fragrance substance
absorbed therein; and
a unique identifier comprising at least one indicia, the at
least one indicia including a composite portion that corresponds
to a combination of a type of fragrance substance and a type of
stuffed toy.
OPINION
Claims 1, 7, and 11 are independent. Appellant relies on the
arguments over the rejection of claim 1 for all of the claims, while
highlighting the similar language of the other independent claims. Appeal
Br. 11—13. We select independent claim 1 as representative. See 37 C.F.R.
§ 41.37(c)(l)(iv).
The Examiner finds that Hidalgo teaches all of the features of the
fragrant stuffed toy of claim 1 except for the “identifier as [] claimed.” Final
Act. 2. The Examiner finds that Lee teaches “a scented doll having an
identifier” such as “an indicia ‘Cherry Sherry’ which can be interpreted as a
composite portion [that] corresponds to a combination of a type of fragrance
substance[,] in this case ‘Cherry’ scent[,] and ‘Sherry’ refers to a type of
stuffed toy[,] in this case the name of the female toy.” Id. at 2—3. The
Examiner then determines “it would have been obvious ... to modify the
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Appeal 2016-001444
Application 13/734,373
stuffed toy of Hidalgo with the teachings of Lee as discussed above for the
purpose of allowing [the] user to identify the scent of the toy.” Id. at 3.
Appellant argues that “the combined references Hidalgo and Lee fail
to teach” “a composite portion that corresponds to a combination of a type of
fragrance substance and a type of stuffed toy” as required by claim 1.
Appeal Br. 11. In particular, Appellant argues that the teaching in Lee is not
“a composite portion, but rather, merely ... an arbitrary proper name for the
doll, e.g., Sherry, Leonard, etc., and the scenting substance, e.g., cherry,
lime, etc. The arbitrary proper name is not a type of stuffed toy (e.g.,
llama).” Id.
The term “composite portion” with respect to a unique identifier (i.e.
doll name) does not appear in the Specification. See generally, Spec. “[I]n
determining the ordinary and customary meaning of the claim term as
viewed by a person of ordinary skill in the art, it is appropriate to consult a
general dictionary definition of the word for guidance.” Comaper Corp. v.
Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010) (citingPhillips v. AWH
Corp., 415 F.3d 1303, 1322—23 (Fed. Cir. 2005) (en banc)). An ordinary
and customary meaning of the claim term “composite” is “[m]ade up of
distinct components.” Webster’s IINew College Dictionary, 236 (3d ed.
2005). An ordinary and customary meaning of the claim term “portion” is
“[a] part of a whole.” Id. at 881.
The example doll names given in the Specification are “Mint
Chocolate Chipmunk” for a chipmunk doll with a mint chocolate chip
fragrance and “Pink Llamanade” for a llama doll with a pink lemonade
fragrance. Spec, at 3,1. 22-4,1. 7.
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Appeal 2016-001444
Application 13/734,373
Though Lee’s “Cherry Sherry”1 and similar names do not evoke the
same play on words as Appellant’s examples, we agree with the Examiner
that they can be considered a “composite portion” as they combine the
distinct components of a fragrance, i.e. Cherry, and a name commonly
associated with a female or male to indicate the sex of the doll (i.e. a boy or
girl doll), which corresponds to a type of doll. Though Appellant states that
“Sherry” does not “correspond to a type of a stuffed toy (e.g., llama),”
(Reply Br. 3) Appellant does not explain why “a female stuffed toy” (Ans.
4) is not a type of stuffed toy, per the finding of the Examiner. Thus, we are
not informed of error in the Examiner’s rejection.
Appellant also argues that Hidalgo teaches away from combination
with Lee. Reply Br. 2. This argument was not presented in the Appeal
Brief, and Appellant has not proffered a showing of good cause explaining
why the argument could not have been presented in the Appeal Brief. This
argument is untimely, but further does not address the rejection as set forth
by the Examiner. See 37 C.F.R. §§ 41.37(c)(l)(iv), 41.41(b)(2); Ex parte
Borden, 93 USPQ2d 1473, 1477 (BPAI 2010) (informative). Appellant
argues that Hidalgo teaches away from a combination of features with Lee,
which is nowhere suggested by the Examiner’s rejection. For this reason we
are not informed of error in the Examiner’s rejection.
1 If prosecution continues, the Examiner may want to consider whether
“Cherry Sherry” would play well with scented Strawberry Shortcake® dolls,
such as Strawberry Shortcake’s horse “Maple Stirrup,” her friends the
“Berrykins,” and the villain “Purple Pieman.”
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Appeal 2016-001444
Application 13/734,373
DECISION
The Examiner’s rejection of claims 1—4, 6, 7, 9-18, and 20 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)(l)(iv).
AFFIRMED
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