Ex Parte Mark et al

Patent Trial and Appeal BoardNov 8, 2012

11515281 (P.T.A.B. Nov. 8, 2012)

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. 11/515,281 09/01/2006 Erwin Paul Mark CM3022MQ 7452 27752 7590 11/09/2012 THE PROCTER & GAMBLE COMPANY Global Legal Department - IP Sycamore Building - 4th Floor 299 East Sixth Street CINCINNATI, OH 45202 EXAMINER COLLINS, MICHAEL ART UNIT PAPER NUMBER 3651 MAIL DATE DELIVERY MODE 11/09/2012 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 ERWIN PAUL MARK, THOMAS WILHELM HOERNER, MICHAEL JOSEPH KUPNESKI, and STANLEY GEORGE JUERGENS ____________________ Appeal 2010-010687 Application 11/515,281 Technology Center 3600 ____________________ Before: EDWARD A. BROWN, LYNNE H. BROWNE, and SCOTT E. KAMHOLZ, Administrative Patent Judges. KAMHOLZ, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-3 and 5-10 under 35 U.S.C. § 102(e) for anticipation by, or in the alternative, under 35 U.S.C. § 103(a) for unpatentability over Decker (US 7,073,684 B2; iss. Jul. 11, 2006). We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2010-010687 Application 11/515,281 2 THE CLAIMED SUBJECT MATTER The claimed subject matter is directed to a pack of wipes with enhanced dispensing. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A pack of wipes comprising: a plurality of wipes arranged in a stack; and, an external envelope enclosing said stack; said external envelope comprising a dispensing orifice; each of said plurality of wipes being folded, each of said folded wipes comprising a leading panel, a central panel, a trailing panel, a leading fold and a trailing fold, wherein said leading fold separates said leading panel from said central panel and said trailing fold separates said central panel from said trailing panel; and said stack having a first wipe and a second wipe, said first wipe being a wipe disposed proximate said dispensing orifice and said second wipe being positioned sequentially adjacent and in contacting engagement with said first wipe, said first wipe and said second wipe having a separation force ranging from between about 0.05N and about 5N; wherein said first wipe remains in contacting engagement with said second wipe during removal of said first wipe through said dispensing orifice; and, wherein said removal of said first wipe through said dispensing orifice induces a portion of said central panel of said second wipe and a portion of said leading panel of said second wipe to protrude from said dispensing orifice. Appeal 2010-010687 Application 11/515,281 3 ANALYSIS Appellants argue claims 1-3 and 5-10 as a group; we therefore select claim 1 as representative and decide the appeal with respect to all claims in this group on the basis of claim 1 alone. Br. 3-6; see also 37 C.F.R. § 41.37(c)(1)(vii) (2011). In response to the Examiner’s finding that Decker discloses all limitations of claim 1 (i.e. that Decker anticipates claims 1), Appellants argue that Decker discloses neither that (1) the “first wipe remains in contacting engagement with said second wipe during removal of said first wipe through said dispensing orifice” nor that (2) “removal of said first wipe through said dispensing orifice induces a portion of said central panel of said second wipe and a portion of said leading panel of said second wipe to protrude from said dispensing orifice.” Br. 4. In particular, Appellants argue that Decker fails to disclose the claimed subject matter because it discloses other ways to obtain wipes from the pack, such as by inserting fingers through the dispensing orifice to grab a single wipe, reaching in a hand to grab as many as desired, or closing the dispensing orifice with a moisture barrier between uses. Br. 5. Appellants further argue that Decker teaches away from the claimed subject matter by calling for a “tight or interference fit” sealing the dispensing orifice. Id. Appellants argue that because Decker teaches away from the claimed subject matter it therefore “cannot provide the basis for [an] anticipatory rejection under 35 U.S.C. § 102(e) or an obviousness rejection under 35 U.S.C. § 103(a).” Br. 6. The Examiner responds by noting that Decker discloses “a stack of wipes folded in a manner which produces a pop-up fashion of dispensing Appeal 2010-010687 Application 11/515,281 4 wherein a first wipe remains in contacting engagement with a second wipe” and cites specifically to Decker col. 7, ll. 25-28, which discloses (at ll. 27- 28) that “an individual wet wipe 12 can be withdrawn through a second entrance in a pop-up fashion.” Ans. 6. The Examiner elaborates: Such a configuration requires at least the leading panel of the second wipe to protrude from the dispensing orifice. Additionally, Decker et al. teach “the wet wipes can be stacked in the dispenser 10 in an interleaved.. array” (see column 8 lines 38-39 and Figure 2). Because the stack is interleaved, a user would be enabled to pull a first wipe out while the leading panel of the second wipe emerges; grab the two wipes at the point where the trailing panel of the first wipe and the leading panel of the second wipe remain in contact; and continue pulling until a portion of the central panel emerged. Furthermore, such an interleaved array would permit a user to grab a first wipe in such a way as to pull out more than just the first wipe. A user could reach through the dispensing orifice (36), pinch the first wipe, and then pull through the dispensing orifice two or more wipes, which would include a central and leading panel of the second wipe. Ans. 7-8. The Examiner concludes that Decker meets the claim limitations at issue because Decker enables a user to perform the specified actions. Ans. 8. Appellants’ arguments are not responsive to the rejection as articulated by the Examiner and therefore do not identify error in the rejection. As the Examiner found, Decker’s Figure 5 shows that Decker’s wipes are folded in the manner set forth in claim 1, see Ans. 4, and that this folding arrangement results in wipes being dispensed in a “pop-up fashion” which necessarily enables a user to manipulate the wipes in the manner claim 1 recites; see Ans. 6-8. Appellants’ arguments that Decker provides ways to obtain wipes other than that recited do not address these findings by Appeal 2010-010687 Application 11/515,281 5 the Examiner. They consequently do not apprise us of error in the rejection. Appellants’ argument that Decker teaches away from the claimed subject matter is not germane to an anticipation rejection. See In re Self, 671 F.2d 1344, 1350-51 (CCPA 1982). Accordingly, we affirm the Examiner’s anticipation rejection. Regarding the Examiner's alternative obviousness rejection of claims 1-3 and 5-10 over Decker, a disclosure that anticipates a claim under 35 U.S.C. § 102 also renders the claim unpatentable under 35 U.S.C. § 103, for anticipation is the epitome of obviousness. See In re Pearson, 494 F.2d 1399, 1402 (CCPA 1974); In re Fracalossi, 681 F.2d 792, 794 (CCPA 1982). We therefore affirm the obviousness rejections for the reasons given above. DECISION For the above reasons, the Examiner’s rejection of claims 1-3 and 5-10 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)(1)(iv). AFFIRMED Klh