Ex Parte Fowler et al

Patent Trial and Appeal Board

Oct 20, 2016

13043584 (P.T.A.B. Oct. 20, 2016)

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.
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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
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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).
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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
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