Ex Parte Sagardoy Muniesa et al

Patent Trial and Appeal BoardFeb 28, 2019

15070705 (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 15/070,705 03/15/2016 Monica Sagardoy Muniesa 99653 7590 03/04/2019 Moser Taboada/ Ansell Limited 1030 Broad Street Suite 203 Shrewsbury, NJ 07702 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. A0362 9219 EXAMINER RANDALL, JR, KELVIN L ART UNIT PAPER NUMBER 3651 NOTIFICATION DATE DELIVERY MODE 03/04/2019 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): docketing@mtiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MONICA SAGARDOY MUNIESA and POOBALAN SUBRAMANIAM Appeal 2018-005715 Application 15/070, 705 Technology Center 3600 Before EDWARD A. BROWN, MICHAEL L. HOELTER, and ANNETTE R. REIMERS, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Ansell Limited ("Appellant") 1 seeks review under 35 U.S.C. Â§ 134 of the Examiner's decision, as set forth in the Final Office Action dated August 1, 2017 ("Final Act."), rejecting claims 1-10 and 13-15.2 We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 Ansell Limited ("Appellant") is the applicant, according to 37 C.F.R. Â§ 1.46, and is identified as the real party in interest. Appeal Br. 3. 2 Claims 11 and 12 have been cancelled. Appeal Br. 19 (Claims App.). Appeal 2018-005715 Application 15/070,705 CLAIMED SUBJECT MATTER Claims 1 and 9 are independent claims. Illustrative claim 1 reads: 1. A universal glove dispenser, comprising: a front surface opposite a back surface, the front surface further comprising a slotted perforation and a large perforation; a left surface opposite a right surface; a top surface opposite a bottom surface; and a three dimensional perforation formed within the top surface, the back surface, the left surface and the right surface, wherein the front surface, the back surface, the left surface, the right surface, the top surface, and the bottom surface define an interior chamber capable of housing a plurality of gloves whether oriented vertically or horizontally, wherein the glove dispenser can selectably dispense gloves and have gloves replenished from at least one of a slotted aperture formed by removing the slotted perforation, a large aperture formed by removing the large perforation or a three dimensional aperture formed by removing the three dimensional perforation. Appeal Br. 17 (Claims App.). REJECTIONS The Final Office Action includes the following rejections under 35 U.S.C. Â§ 103: I. Claims 1-8 stand rejected as unpatentable over Simile-Gravina (US 6,062,424, issued May 16, 2000) and Ho Fung (US 2007/0278120 Al, published Dec. 6, 2007). 2 Appeal 2018-005715 Application 15/070,705 II. Claims 9, 10, 13, and 14 stand rejected as unpatentable over Simile-Gravina, Ho Fung, and Stollery (US 2011/0062179 Al, published Mar. 17, 2011). III. Claim 15 stands rejected as unpatentable over Simile-Gravina, Ho Fung, Stollery, and Shields (US 5,816,440, issued Oct. 6, 1998). ANALYSIS Rejection I Claim 1 The Examiner finds Simile-Gravina discloses a dispenser comprising most of the claimed limitations. Final Act. 4--5 ( citing Simile-Gravina Figs. 1--4). The Examiner acknowledges Simile-Gravina does not teach "a three dimensional perforation formed within the top surface, the back surface, the left surface and the right surface" of the dispenser, to form "a three dimensional aperture," as claimed. Id. at 5. The Examiner finds, however, "Ho Fung teaches a three dimensional perforation (86) formed within a top surface (50), a back surface (68), a left surface (40) and a right surface (40)" thus forming "a three dimensional aperture." Id. (citing Ho Fung Fig. 3); see also Ho Fung ,r 35; Fig. 10. The Examiner concludes it would have been obvious to modify the dispenser of Simile-Gravina "to include the three dimensional opening of Ho Fung so as to increase the functionality of a dispensing device by allowing for both dispensing and replenishing of [a] product from an aperture." Final Act. 5. Appellant contends the Examiner applied an incorrect standard for obviousness, arguing the Examiner states in the Advisory Action "one of ordinary skill in the art would readily recognize being able to put an 3 Appeal 2018-005715 Application 15/070,705 identical three dimensional opening on the opposite container in a corresponding position." Appeal Br. 6 (quoting Adv. Act. dated Nov. 17, 2017, last page). According to Appellant, the Examiner's rationale for modifying the dispenser of Simile-Gravina is based on the bodily incorporation of the arcuate cutouts of Ho Fung into the dispenser of Simile- Gravina, which is an error as a matter of law. Id. This argument is unpersuasive. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). "If a person of ordinary skill can implement a predictable variation,Â§ 103 likely bars its patentability." Id. at 417. Ho Fung discloses "[ c ]ontainers C can be withdrawn from the carton 190 through the dispenser opening 180." Ho Fung ,r 35. 3 Opening 180 is a "three dimensional aperture" formed from a "three dimensional perforation (86)." Final Act. 5; see also Ho Fung Figs. 3, 10. Combining the teachings of Simile-Gravina with "the three dimensional opening of Ho Fung" would yield the predictable result of "increas[ing] the functionality of a dispensing device by allowing for both dispensing and replenishing of product from an aperture," as the Examiner explained. See Final Act. 5. We thus disagree with Appellant that the Examiner's rationale for modifying the dispenser of Simile-Gravina is inadequate. Appellant contends, if Simile-Gravina's dispenser were modified as proposed by the Examiner, the dispenser would be rendered unsatisfactory 3 Herein, passages that are reproduced from the cited references will omit all bolding of reference numbers. 4 Appeal 2018-005715 Application 15/070,705 for its intended purpose, and such modification would be contrary to its principle of operation, which is rotational symmetry about a longitudinal axis. Appeal Br. 7; see also id. at 8-13 (citing Simile-Gravina 2:57-3:3; 3:40-42, 61---62; 4:20-23, 31-39; Figs. 2-3); Reply Br. 2-7. According to Appellant, the symmetry of the dispenser about axis 40 and axis 42 shown in Simile-Gravina's Figures 2 and 3 is a key principle of operation, which enables providing identical faces when rotated, except for having different languages. Appeal Br. 9. Appellant argues modifying the dispenser by adding a three-dimensional aperture would destroy the symmetry and render the dispenser unsatisfactory for its intended purpose of providing a symmetrical merchandising tower. Id. at 9-10 (citing Simile-Gravina 2:57- 3 :3). Appellant points out that at end wall 30 of Simile-Gravina's dispenser, a phantom area 30a has functional print information that is identical to print information at phantom area 31 a of end wall 31, but in a different language. Id. at 12 (citing Simile-Gravina 4:20-23; Figs. 2-3). Appellant asserts the Examiner's proposed modification would remove phantom area 30a and prevent its full availability. Id. at 12-13. Appellant argues the Examiner's proposed modification is based on impermissible hindsight reconstruction. Id. at 13. Appellant's contentions are unpersuasive. It is well established "[a] reference must be considered for everything that it teaches, not simply the described invention or a preferred embodiment." See In re Applied Materials, Inc., 692 F.3d 1289, 1298 (Fed. Cir. 2012) (citing EWP Corp. v. Reliance Universal Inc., 755 F.2d 898, 907 (Fed. Cir. 1985)); In re Lamberti, 545 F.2d 747, 750 (CCPA 1976) (holding it is well established a reference disclosure is not limited only to its preferred embodiments, but is 5 Appeal 2018-005715 Application 15/070,705 available for all it discloses and suggests to one of ordinary skill in the art). Simile-Gravina describes preferred embodiments or preferences. These instances include: (1) "[p]referably, the two longitudinal walls with slot openings are printed with indicia in two different languages so that either side may be selected for use to dispense packages" and "[p]referably there is printed text in different languages on either end wall so that either end wall may be used as the front wall of the tray depending upon the language desired to be exhibited on the front of the tray" (Simile-Gravina Abstract; emphasis added); (2) "[i]n the preferred embodiment depicted in FIGS. 2 and 3, ... slot openings 36, 38 and their removal covers 37a, 37b and 39a, 39b on both sides 26, 27 of dispenser 20 are identical" (id. 3:37--42; emphasis added); (3) "[ e ]nd walls 30 and 31 preferably are also printed with identical information in two different languages indicated by phantom areas 30a, 31a in FIGS. 2 and 3" (id. 4:20-23; emphasis added); and (4) "[t]he end walls 30, 31 are rotationally symmetric about a second axis 42 extending transversely through the tower between the first pair of longitudinal walls 26, 27" and "[t]his latter symmetry is provided because in the preferred dispenser 20 depicted, one longitudinal wall 27 and portions of the remaining pair of longitudinal walls 28, 29 and end walls 30, 31 are retained to form a dispensing tray 22' depicted in FIG. 5" (id. 4:36--43; emphasis added). The symmetry described in Simile-Gravina repeatedly relates to preferred embodiments. However, Simile-Gravina is not limited to its preferred embodiments, but instead, is available for all it discloses and suggests to one of ordinary skill in the art. See Applied Materials, 692 F.3d at 1298; Lamberti, 545 F.2d at 750. We note Simile-Gravina further discloses: (1) as shown in Figures 2 6 Appeal 2018-005715 Application 15/070,705 and 3, phantom areas 26a and 27a appear to reside more towards end wall 31 and more distant from end wall 30 (Simile-Gravina Figs. 2-3); (2) "[m]ore or less of the carton 22 can be made removable by the separation means to convert carton 22 into an open top tray dispenser" (id. 5:34--36; emphasis added); and (3) "[t]he slot openings and/[]or removable covers may have different shapes, locations and numbers" (id. 5:39-40; emphasis added). Additionally, we note claim 1 does not recite the claimed dispenser is symmetrical about a rotation axis. Id. 5:46-6:9. Thus, to the extent symmetry is "preferred," Simile-Gravina does not indicate clearly any requirement for complete symmetry. See also Final Act. 3 ("Examiner notes that while Smile-Gravina prefers a symmetric design of a container, Smile- Gravina' s container is not fully symmetric."). As noted above, according to Simile-Gravina, it is preferable that phantom areas 30a and 3 la are printed with identical information. See Simile-Gravina 4:20-23. As for printed information, Simile-Gravina discloses "the printing/indicia and other features (e.g. slots 32, 36 and removable cover elements 33, 37a, 37b) can be inverted between walls 26 and 27." Id. 5:29-33. In other words, it is not necessary that phantom areas 3 Oa and 31 a contain printed information as other locations on the dispenser can have printed information. "[T]he [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." KSR, 550 U.S. at 418. As noted in KSR, "[a] person of ordinary skill is also a person of ordinary creativity, not an automaton." Id. at 421. With the Examiner's proposed modification of Simile-Gravina's dispenser, which adds a three dimensional 7 Appeal 2018-005715 Application 15/070,705 aperture or opening and thereby removes some portion of phantom area 3 Oa, if symmetry and printed information are still desired, a skilled artisan would have the requisite skill to either not provide printed information at phantom area 30a, or to place printed information at other locations, for example, at end walls 26 and 27 or at longitudinal walls 28 and 29. See Simile-Gravina Figs. 2--4; 4:20-23; 5:29--33. Accordingly, we sustain the rejection of claim 1 as unpatentable over Simile-Gravina and Ho Fung. Claims 2---8 For claims 2-8, Appellant merely asserts the Examiner "provides no rational basis to believe that the panels described in Ho Fung would be combined with [the] Simile-Gravina box by one of ordinary skill in the art." See Appeal Br. 13-14. As Appellant does not apprise us of error for parent claim 1, we sustain the rejection of depedent claims 2-8 as unpatentable over Simile-Gravina and Ho Fung for the same reasons as for claim 1. Rejection II For claim 9, Appellant relies on the same arguments as for claim 1. Id. at 14--15. As Appellant does not apprise us of error in the rejection of claim 1, we sustain the rejection of claim 9, and of claims 10, 13, and 14, which are not argued separately, over Simile-Gravina, Ho Fung, and Stollery for the same reasons as for claim 1. Re} ection III Claim 15 depends directly from claim 13 and ultimately from claim 1. Appellant argues "Shields does not overcome the deficiencies of the cited art 8 Appeal 2018-005715 Application 15/070,705 in teaching or suggesting the features of claim 13." Id. at 15. As Appellant does not apprise us of error in the rejection of claim 13, we sustain the rejection of claim 15 over Simile-Gravina, Ho Fung, Stollery, and Shields for the same reasons as for claims 1 and 13. DECISION We affirm the rejections of claims 1-10 and 13-15. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED 9