Ex Parte Kleinsmith

Patent Trial and Appeal BoardAug 27, 2013

11592625 (P.T.A.B. Aug. 27, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte RANDALL JAMES KLEINSMITH ____________________ Appeal 2011-010688 Application 11/592,625 Technology Center 3700 ____________________ Before EDWARD A. BROWN, LYNNE H. BROWNE, and MITCHELL G. WEATHERLY, Administrative Patent Judges. WEATHERLY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134 from the final decision of the Examiner rejecting claims 2-16 and 24. Claims 1, 17-23, and 25 are canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2011-010688 Application 11/592,625 2 The claims are directed to a product display assembly. Claim 24, reproduced below, is the sole independent claim and representative of the claimed subject matter: 24. A product display assembly comprising: a supporting medium comprising a maximum length boundary of a shipping and display space and a maximum width boundary of the shipping and display space; a plurality of product packages, loaded on the supporting medium, comprising a maximum height boundary of the shipping and display space, a length boundary, and a width boundary; wherein each product package comprises one or more outward facing sides wherein each outward facing side is flat and comprises substantially similar brand logos; and wherein each product package comprises a negative side, wherein the negative side of the product package is not outward facing and comprises characteristics selected from the group consisting of: seams, closures, adhesive, regulatory information, mechanical fasteners, and combinations thereof. REFERENCES The Examiner relies upon the following evidence: Carstens Lee US 5,339,957 US D556,051 S Aug. 23, 1994 Nov. 27, 2007 Attachment I, “Bounty Pallet Display” submitted by Appellant with the Remarks of 02/19/2009 (“Attachment I”). REJECTIONS Appellant seeks our review of the following rejections: Appeal 2011-010688 Application 11/592,625 3 1. Claims 2-4, 6-16, and 241 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Carstens and Lee. Ans. 4-8. 2. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Carstens, Lee, and Attachment I. Ans. 9. OPINION Obviousness of claims 2-4, 6-16, and 24 over Carstens and Lee Appellant argues for reversing the rejection of claims 2-4, 6-16, and 24 as a group. Br. 3. We select independent claim 24 as being representative of the group with our analysis of claim 24 controlling the disposition of all claims in the group. 37 C.F.R. § 41.37(c)(1)(vii). The Examiner finds that Carstens describes a product display substantially as set forth in claim 24 with the difference being that Carstens does not explicitly describe a “negative side” on the product package as defined in the claim. Ans. 5. The Examiner finds, however, that Lee describes such a product package with the negative side including “regulatory information.” Id. at 6. The Examiner reasons that a skilled artisan would have found it obvious to arrange product packages like Lee’s in a display like Carstens’ to “maximize the advertising exposure” and provide a “visually aesthetic appearance.” Id. The Examiner also finds that arranging product packages as suggested by the combination of Carstens and Lee “does no more that yield predictable results.” Id. 1 The Examiner only listed claims 2-4, 7, 11-14, and 24 as being subject to this ground of rejection. Ans. 4. However, the Examiner addresses claims 2-4, 6-16, and 24 in the body of the rejection. Id. at 4-8. Appeal 2011-010688 Application 11/592,625 4 Appellant agrees that Carstens is representative of pallet assemblies and silent regarding “negative sides” as claimed. Br. 3. Appellant also agrees that Lee is representative of common product packaging. Id. Nonetheless, Appellant contends that stacking Lee’s product on a pallet as shown in Carstens would “inevitably yield a pallet for which the . . . negative side of at least one product is facing outwardly on at least one side of the pallet.” Id. We disagree. Appellant impliedly reasons that every package of products described by Lee would necessarily be stacked in a particular orientation (e.g., resting on the “bottom” with Lee’s “right side” oriented in a vertical plane) on the product display. Appellant fails to recognize that each of Lee’s products could simply be stacked on Carstens’s pallet with the “right side” facing downward, which would satisfy all claim requirements. The Examiner also finds that individual product packages could be oriented differently from each other on Carstens’s pallet so that the “negative side” of every package was hidden. Ans. 11. Appellant’s argument that rests upon the difficulty of orienting individual product packages differently on the same pallet is inapposite because claim 24 recites no limitations on how the claimed assembly is built. For these reasons, we affirm the rejection of claim 24 and its dependent claims 2-4 and 6-16. Obviousness of claim 5 over Carstens, Lee, and Attachment I Claim 5 depends directly upon claim 24 and further recites that “the product packages comprise disposable paper products.” Appellant argues that Attachment I describes a “random orientation of packages on a pallet” with “some of the products . . . oriented with the negative side outwardly facing, and others not.” Br. 5. However, the Examiner relies upon the Appeal 2011-010688 Application 11/592,625 5 teachings of Attachment I solely to establish that it was well known to arrange disposable paper products in a product display. Ans. 9. Therefore, Appellant’s critique of Attachment I does not persuade us of error, and we affirm the rejection of claim 5. DECISION For the reasons stated above, we affirm the rejection of claims 2-16 and 24. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED mls