Ex Parte Fowler et alDownload PDFPatent Trial and Appeal BoardOct 20, 201613043584 (P.T.A.B. Oct. 20, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/043,584 03/09/2011 Paul Michael Fowler 143550 7590 10/24/2016 FOLEY & LARDNER LLP 3000 K STREET N.W. SUITE 600 WASHINGTON, DC 20007-5109 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. 113963-0101 9140 EXAMINER REYNOLDS, STEVEN ALAN ART UNIT PAPER NUMBER 3788 NOTIFICATION DATE DELIVERY MODE 10/24/2016 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): ipdocketing@foley.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PAUL MICHAEL FOWLER, MATTHEW ERIC BLUE, and RONALD T. KLEIN Appeal2014-008038 Application 13/043,584 Technology Center 3700 Before: CHARLES N. GREENHUT, ERIC C. JESCHKE, and PAUL J. KORNICZKY, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1, 2, and 4--15. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. Appeal2014-008038 Application 13/043,584 CLAIMED SUBJECT MATTER The claims are directed to a product dispensing system. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1 A product dispensing system, comprising; a. a plurality of layers of products, each layer having multiple items in separate packages, b. a carrier for each layer, said separate packages of each layer being secured to and extending in series from the carrier for each layer, with a first package being secured to the carrier for the layer, and each succeeding package being secured to the next preceding package, and c. the carrier and packages of each layer being secured to one another with successive package connections of increasing strength with increasing distance from a package most distant from said carrier. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Braverman Dossett Kumakura us 3,780,856 US 6,401,304 Bl US 6,439,390 Bl REJECTIONS Dec. 25, 1973 June 11, 2002 Aug. 27, 2002 Claims 1, 2, and 4--9 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Kumakura, Dossett, and Braverman. Claims 10-15 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Kumakura and Braverman. 2 Appeal2014-008038 Application 13/043,584 OPfNION The point of contention for both independent claims on appeal, claims 1 and 10, involves the successive or progressive "package connections of increasing strength with increasing distance from a package most distant from [the] carrier." App. Br. 5-8; 12-16. Appellants correctly point out that Braverman does not expressly disclose this exact structure. App. Br. 9, 13. However, the Examiner's conclusion is not based on any findings to the contrary. Rather, the Examiner regards Braverman as teaching a known technique for manipulating the strength of frangible package portions so as to encourage tearing in the desired manner. Final Act. 3--4; Ans. 3--4. It is the application of that technique to the known Kumakura device that yields the claimed subject matter, not bodily incorporating structural elements of Braverman's package into Kumakura's. See App. Br. 6; 13-14. The Examiner's reasoning for applying Braverman's teaching is to facilitate package separation in the manner desired by Kumakura. Ans. 5 (addressing App. Br. 6-8; 14--15). "[I]f a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill." KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). A determination of obviousness does not require the claimed invention to be expressly suggested by any one or all of the references. In re Keller, 642 F.2d 413, 425 (CCPA 1981). An artisan "must be presumed to know something about the [art] apart from what the references disclose." In re Jacoby, 309 F.2d 513, 516 (CCPA 1962). The Examiner provides a thorough and comprehensive analysis of 3 Appeal2014-008038 Application 13/043,584 the issues raised concerning claims 1 and 10. We adopt the Examiner's analysis in this regard (Ans. 4--7) as our own. 1 We also agree with and adopt as our own the Examiner's express construction and analysis of claim 9. See Ans. 7-9. "[S]aid bridges" in claim 9 could reasonably refer to each bridge or the collection of bridges. The broadest reasonable interpretation of that term, therefore, is that it covers either. Braverman clearly teaches an arrangement consistent with the latter interpretation. Thus, under this construction, we agree with the Examiner that the claimed subject matter would have been obvious to one having ordinary skill in the art in view of the combined teachings of the references. Turning lastly to claims 6 and 12, although the Examiner correctly finds that "Braverman teaches the width between the outer-most bridges (160) of the stronger perforation line ( 118) is greater than the width between the outer-most bridges (162) of the weaker perforation line (117)" (Ans. 7 (emphasis added)), this does not suffice to satisfy the claim language, which requires "bridges [i.e., themselves] for each package connection [to] increase in width" (claims 6 and 12 (emphasis added)). See App. Br. 9-10; 16. The Examiner does not provide any discussion to account for this seemingly clear distinction. Accordingly, the rejection of claims 6 and 12 cannot be sustained on the basis set forth by the Examiner. DECISION The rejection of claims 1, 2, 4, 5, and 7-9 under 35 U.S.C. § 103(a) as being unpatentable over Kumakura, Dossett, and Braverman is affirmed. 1 See, e.g., In re Paulsen, 30 F.3d 1475, 1478 n.6 (Fed. Cir. 1994); accord In re Cree, 818 F.3d 694, 698 n.2 (Fed. Cir. 2016). 4 Appeal2014-008038 Application 13/043,584 The rejection of claims 10, 11, and 13-15 under 35 U.S.C. § 103(a) as being unpatentable over Kumakura and Braverman is affirmed. The respective rejections of claims 6 and 12 are reversed. 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-IN-PART 5 Copy with citationCopy as parenthetical citation