Ex Parte Stratton

Patent Trial and Appeal Board

Nov 26, 2012

11680543 (P.T.A.B. Nov. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MAUREEN STRATTON
____________

Appeal 2010-005435
Application 11/680,543
Technology Center 3600
____________

Before GAY ANN SPAHN, BRETT C. MARTIN, and
RICHARD E. RICE, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Maureen Stratton (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner’s rejections of claims 1-20. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM-IN-PART.

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The Claimed Subject Matter
The claimed subject matter relates to “a disposable litter device and
system, as used in a pet litter box, which utilizes a litter enclosure and
elimination functionality to lessen some of the undesirable characteristics of
dealing with pet litter.” Spec. 1, ll. 8-10. Claims 1, 10, and 19 are
independent and claim 1, reproduced below, is illustrative of the subject
matter on appeal.
1. A disposable litter device comprising:
a liner layer having an area and including a peripheral
closure means;
litter; and
a litter enclosure region about a central portion of the
liner layer having an area substantially less than said liner layer
area, wherein the litter enclosure region includes a closure layer
and the liner layer such that the litter is retained between the
closure layer and the liner layer and providing a liner layer
margin thereabout, and wherein the enclosure region includes
opening means to release said litter therefrom.

The Rejections
The following Examiner’s rejections are before us for review:
(1). claims 1, 6, 10, and 15 under 35 U.S.C. § 102(b) as anticipated
by Kasbo (US 5,488,930, issued Feb. 6. 1996);
(2). claims 2, 3, 11, 12, 19, and 20 under 35 U.S.C. § 103(a) as
unpatentable over Kasbo and Sides (US 4,813,374, issued Mar. 21, 1989);
(3). claims 4, 5, 13, and 14 under 35 U.S.C. § 103(a) as
unpatentable over Kasbo, Sides, and Yananton ʼ273 (US 4,756,273, issued
Jul. 12, 1988);
(4). claims 7, 8, 16, and 17 under 35 U.S.C. § 103(a) as
unpatentable over Kasbo and Yananton ʼ273;
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(5). claims 9 and 18 under 35 U.S.C. § 103(a) as unpatentable over
Kasbo, Yananton ʼ273, and Sides; and
(6). claims 19 and 20 under 35 U.S.C. § 103(a) as unpatentable over
Yananton ʼ204 (US 4,869,204, issued Sep. 26, 1989) and Reed (US
4,627,381, issued Dec. 9, 1986).

OPINION
Rejection (1) – Anticipation based on Kasbo
Independent claim 1
The Examiner finds that Kasbo discloses each and every limitation to
anticipate independent claim 1. In particular, Kasbo discloses a disposable
litter device including a liner layer “including a peripheral closure means
(Kasbo Fig. 6 #28)” and a litter enclosure region “includ[ing] a closure
layer (Kasbo Fig. 7 #14 and Fig. 2 #1 and 16).” Ans. 3-4.
First, Appellant argues that Kasbo’s label or seal 28 is not a peripheral
closure layer, because it is “not used, nor apparently capable of being used to
provide any closure means or function” as “the label 28 connects only two
points covering very, very small portions of the Kasbo layer 10 . . . certainly
not providing the peripheral closure of the layer 10.” App. Br. 13. More
particularly, Appellant argues that:
[t]he Examiner’s interpretation of [Appellant’s] claim 1
limitation of a “peripheral closure means” to include a
breakable label attached to 2 points covering very, very small
portions of a web element is unreasonable according to the
meaning of “peripheral”, and unreasonable according to the
[S]pecification, which provides “[a] drawstring 21 is located
about the periphery 22 of liner layer 20.”
App. Br. 13 (citing Spec. 4). Emphasis omitted.
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The Examiner responds that “since element #28 closes the device of
Kasbo and is located on the periphery of Kasbo, it is a peripheral closure
means.” Ans. 8. The Examiner explains that even though the Specification
discloses a drawstring, Appellant has not claimed a drawstring and has not
“claimed that the peripheral closure means is around the entire/complete
perimeter of the device.” Id. Further, the Examiner further explains that
“even though Kasbo connects two points[,] it satisfies the brea[d]th of the
claim language since [Appellant] hasn’t claimed it in [a] manner structurally
different th[a]n Kasbo #28.” Id.
The ordinary and customary meaning of the claim term “peripheral” is
“[r]elated to, located in, or constituting an outer boundary or periphery,”1
and the ordinary and customary meaning of the word “periphery” is “[a] line
that forms the boundary of an area; a perimeter.”2 Thus, one of ordinary
skill in the art would understand the claim term “peripheral closure means”
to be a means for closure that is related to, located in, or constitutes an outer
boundary or perimeter. Since Kasbo’s label or seal 28 is a means for closure
of the web of film 10 into the animal litter package 8 as illustrated in Figure
6 and is both related to and located in the web of film 10’s periphery, we are
not persuaded by Appellant’s arguments that the Examiner erred.
Second, Appellant argues that Kasbo’s flaps 14, 16 do not constitute
the claimed closure layer because:

1 The American Heritage® Dictionary of the English Language, Fourth
Edition, Copyright ©2000, Houghton Mifflin Company, accessed at
http://www.thefreedictionary.com/peripheral (last visited Nov. 19, 2012).
2 The American Heritage® Dictionary of the English Language, Fourth
Edition, Copyright ©2000, Houghton Mifflin Company, accessed at
http://www.thefreedictionary.com/periphery (last visited Nov. 19, 2012).
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Kasbo teaches the argued closure layer (#14, #16) to be external
to the web 10 (Figs. 1 – 7), separated by the heat seal line 12
and the web 10 from the litter, and actually extending away
from the region into which the litter is contained, never forming
the claimed “enclosure region” which “includes a closure layer
and the liner layer”, and never having the claimed “opening
means to release said litter therefrom” which release in Kasbo is
solely provided by peeling of the heat seal at 12 (col. 7, lines 24
– 25) revealing the litter contained entirely and only within the
folded web 10 argued by the Examiner to be the claimed liner
layer.
App. Br. 14 .
The Examiner responds that Kasbo’s web of film 10 as illustrated in
Figure 7 constitutes the claimed liner layer and Kasbo’s flaps 14 and 16
constitute the claimed closure layer “since together elements #10, #14, #16
retain the litter there between creating an enclosure region.” Ans. 9. The
Examiner explains that “Kasbo elements #14 and #16 merely come together
as flaps,” e.g., “Kasbo Fig. 7 element #16 is the vertical portion extending
up from horizontal portion of #10” and “Kasbo element #16 comes over the
top of the litter thus creating a closure layer and in combination with the
bottom layer of #10 creates an enclosure region.” Id. The Examiner further
explains that “[i]n a closed state[,] the elements of Kasbo #14 and #16 cover
over the top of the litter and are considered the closure layer and any portion
of the device below the litter is considered the liner layer.” Id.
Appellant appears to be arguing that because the flaps 14, 16 do not
touch the litter, they cannot be considered to enclose the litter. We cannot
agree because the animal litter package 8 in Kasbo’s Figure 6 illustrates how
the flaps 14 and 16 enclose the litter 25. The claims are not so narrow as to
require the litter to touch the flaps 14, 16 in order for the flaps 14, 16 to
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enclose the litter 25. Therefore, we are not persuaded by Appellant’s
arguments that the Examiner erred.
Accordingly, we sustain the Examiner’s rejection of independent
claim 1 under 35 U.S.C. § 102(b) as unpatentable over Kasbo.
Dependent claim 6
Claim 6 depends from claim 1 and recites that “the opening means is
selected from the group consisting of a pull tab, rip chord [sic - cord],
perforated edged [sic – edge], and adhesive.” App. Br., Clms. App’x.
The Examiner finds that “Kasbo as modified teaches [the] opening
means is selected from the group consisting of a pull tab, rip chord [sic –
cord], perforated edged [sic – edge], and adhesive (Kasbo #12 ‘adhesive’).”
Ans. 5.
Appellant argues that the Examiner’s interpretation that Kasbo’s heat
seal 12 meets claim 6’s limitation of “adhesive” is unreasonable. App. Br.
14.
We note that Kasbo discloses that web of film 10 “is folded as shown
in FIG. 2, and heat sealed along primary heat seal line 12.” Kasbo, col. 7, ll.
1-3. The ordinary and customary meaning of the term “heat seal” is “[t]o
enclose an object in a thin clear thermoplastic sheet that is bonded by heat
and pressure to form a closure against air or tampering.”3 The ordinary and
customary meaning of the term “adhesive” is “[a] substance, such as paste or

3 The American Heritage® Dictionary of the English Language, Fourth
Edition, Copyright ©2000, Houghton Mifflin Company, accessed at
http://www.thefreedictionary.com/heat-seal (last visited Nov. 19. 2012)
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cement that provides or promotes adhesion.”4 Thus, we agree with
Appellant that a person of ordinary skill in the art would not find reasonable
the Examiner’s interpretation of Kasbo’s heat seal line 12 to constitute an
adhesive, because an adhesive promotes adhesion by use of a sticky
substance such as paste or cement, whereas a heat seal promotes adhesion by
heat and pressure.
Accordingly, we do not sustain the Examiner’s rejection of claim 6
under 35 U.S.C. § 102(b) as anticipated by Kasbo.
Independent claim 10
Appellant presents the same arguments for independent claim 10 (see
App. Br. 15-17) as those presented and discussed supra with respect to
independent claim 1 (see App. Br. 12-14). For the same reasons as
discussed supra with respect to independent claim 1, we sustain the
Examiner’s rejection of independent claim 10 under 35 U.S.C. § 102(b) as
anticipated by Kasbo.
Dependent claim 15
Appellant presents the same argument for dependent claim 15 (see
App. Br. 17) as those presented and discussed supra with respect to
dependent claim 6 (see App. Br. 14-15). For the same reasons as discussed
supra with respect to dependent claim 6, we do not sustain the Examiner’s
rejection of dependent claim 15 under 35 U.S.C. § 102(b) as anticipated by
Kasbo.

4 The American Heritage® Dictionary of the English Language, Fourth
Edition, Copyright ©2000, Houghton Mifflin Company, accessed at
http://www.thefreedictionary.com/adhesive (last visited Nov. 19, 2012).
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Rejection (2) - Obviousness based on Kasbo and Sides
Dependent claims 2 and 11
Appellant argues claims 2 and 11 as a group and we select claim 2 as
the representative claim. See App. Br. 18-20; see also 37 C.F.R. §
41.37(c)(1)(vii) (2011). Claim 11 stands or falls with claim 2.
Claim 2 depends from claim 1 and recites that “the closure means is a
drawstring.” App. Br., Clms. App’x.
The Examiner finds that Kasbo substantially discloses the subject
matter of claim 2; however, “Kasbo is silent on explicitly teaching the
closure means is a drawstring.” Ans. 5. To cure the deficiency of Kasbo,
the Examiner turns to Sides’ teaching of “a prepackaged litter and liner
combination where the liner has a drawstring means for closure (Sides
#24).” Id. The Examiner concludes that it would have been obvious to one
of ordinary skill in the art to modify Kasbo by the teaching of Sides “for
ergonomic ease of use f[or] removing from the package and for removal
from the litter box” since “[t]he modification is merely the use of a known
technique to improve a similar device in the same way.” Id.
First, Appellant argues that “for the litter closure layer to exist as
elements 14, 16, the Kasbo structure must exist in a folded form as shown in
Kasbo Figs. 4 – 6” and
[i]n such folded form, there is clearly no motivation to add a
second closure device, e.g. a drawstring, as the package is
already closed, or if added to the structures of Figs. 4 – 6 would
arguably place the drawstrings in an area which invades the
litter 25, or interfere with the ultimate opening (see Kasbo Fig.
7), use and closure, and thus such considerations inhibit, rather
than motivate the Examiner’s argued combination.
App. Br. 19.
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The Examiner responds that Kasbo is modified by adding the Sides
drawstring 24 around the perimeter of Kasbo’s web of film as illustrated in
Figure 1. Ans. 10. The Examiner explains that “[w]hen Kasbo is being
used[,] it is used in an unfolded configuration,” and “[i]n order to use the
litter device of Kasbo, the heat seal is broken and the layers are separated
and the litter is exposed.” Id. The Examiner further explains that “[o]nce
the litter is soiled[,] the device is intended to be disposed” and thus, “there is
motivation found in the teachings of the art to add the closure means of
Sides to the structure of Kasbo to facilitate disposal.” Id.
We are not persuaded by Appellant’s argument that the Examiner
erred, because we agree with the Examiner’s statement that “[t]he peripheral
closure means taught by Kasbo #28 is a closure means before the device is
used and the addition of the closure means taught by Sides #24 is a closure
means for use after the device is soiled.” Id.
Second, Appellant argues that “the Examiner’s argued combination
cannot be provided without undue experimentation and significant structural
changes not taught, suggested or disclosed in the cited art”. App. Br. 19.
We are not persuaded by Appellant’s argument with respect to undue
experimentation, because undue experimentation is used to evaluate whether
there is a lack of enablement,5 not whether a combination is non-obvious.
We are also not persuaded by Appellant’s argument with respect to
significant structural changes, because even if the Examiner’s proposed
modification of Kasbo by the teachings of Sides would require a substantial

5 See In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988) (“Enablement is not
precluded by the necessity for some experimentation…. However,
experimentation needed to practice the invention must not be undue
experimentation).
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reconstruction or redesign, a conclusion of obviousness may still be
appropriate if the Examiner identifies a persuasive reason why one of
ordinary skill in the art might have undertaken the modification. In the
instant case, the Examiner has articulated such a persuasive reason, namely,
to facilitate disposal of the soiled litter. As we find that the Examiner’s
articulated reasoning has a rational underpinning,6 we are not persuaded by
Appellant’s arguments that the Examiner erred.
Accordingly, we sustain the Examiner’s rejection of claim 2, and
claim 11 which falls therewith, under 35 U.S.C. § 103(a) as unpatentable
over Kasbo and Sides.
Dependent claims 3 and 12
Claim 3 depends from claim 2, claim 12 depends from claim 11, and
each of claims 3 and 12 recites that “the opening means is selected from the
group of a pull tab, rip chord [sic – cord], perforated edged [sic - edge], and
adhesive.” App. Br., Clms. App’x.
The Examiner’s rejection of claims 3 and 12 depends upon the same
unreasonable finding as discussed with respect to claims 6 and 15 supra that
Kasbo’s heat seal line 12 constitutes an adhesive.
For the reasons discussed supra with respect to claims 6 and 15, we
do not sustain the Examiner’s rejection of claims 3 and 12 under 35 U.S.C.
§ 103(a) as unpatentable over Kasbo and Sides.

6 See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (holding that
“rejections on obviousness grounds cannot be sustained by mere conclusory
statements; instead, there must be some articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness.”).

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Independent claim 19
The Examiner makes the same findings for claim 19 as discussed with
respect to claim 2 supra (Ans. 5) and Appellant sets forth the same
arguments for claim 19 as discussed supra with respect to claim 2 (App. Br.
20-22). For the same reasons as discussed supra with respect to claim 2, we
are not persuaded by Appellant’s arguments that the Examiner erred.
Accordingly, we sustain the Examiner’s rejection of independent
claim 19 under 35 U.S.C. § 103(a) as unpatentable over Kasbo and Sides.
Dependent claim 20
Claim 20 depends from claim 19, and recites that “the opening means
is selected from the group consisting of a pull tab, rip chord [sic – cord],
perforated edged [sic – edge], and adhesive.” App. Br., Clms. App’x.
The Examiner’s rejection of claim 20 depends upon the same
unreasonable finding as discussed supra with respect to claim 6 and 15 that
Kasbo’s heat seal line 12 constitutes an adhesive.
For the reasons discussed supra with respect to claims 6 and 15, we
do not sustain the Examiner’s rejection of claim 20 under 35 U.S.C. § 103(a)
as unpatentable over Kasbo and Sides.

Rejection (3) – Obviousness based on Kasbo, Sides, and Yananton ʼ273
Appellant argues claims 4, 5, 13, and 14 as a group and we select
claim 4 as the representative claim. See App. Br. 18-20; see also 37 C.F.R.
§ 41.37(c)(1)(vii) (2011). Claims 5, 13, and 14 stand or fall with claim 4.
Claim 4 depends from independent claim 1 and recites that “the liner
layer further comprises litter box retaining means.” App. Br., Clms. App’x.
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The Examiner finds that Kasbo substantially discloses the subject
matter of claim 4; however, “Kasbo is silent on the liner layer further
compris[ing] litter box retaining means.” Ans. 5. To cure the deficiency of
Kasbo, the Examiner turns to Yananton ʼ273 for its teaching of “a litter liner
layer litter box retaining means (Yananton Fig. 8 #82 and 84).” Ans. 5-6.
The Examiner concludes that it would have been obvious to one of ordinary
skill in the art to modify Kasbo and Sides by making the liner layer further
comprise litter box retaining means as taught by Yananton ʼ273 “to prevent
undesired displacement in the container” because “[t]he modification is
merely the use of a known technique to improve a similar device in the same
way.” Ans. 6.
Appellant argues that the adhesive strips 82, 84 of Yananton ʼ273 are
“on a layer separate from a layer which supports litter, movable (and
foldable) thereover, which therefore does not teach the application of an
adhesive 82, 84 to a liner layer of the present invention.” App. Br. 22-23.
The Examiner responds that Yananton ʼ273 “was cited purely to teach
the general knowledge in the art that it is known to apply an adhesive to the
bottom surface of a litter box liner to hold it in place” as a litter box
retaining means. Ans. 10-11 (citing Yananton, col. 7, ll.56-64).
We are not persuaded by Appellant’s argument as it is not
commensurate with the scope of claim 4. More particularly, claim 4 only
recites that the liner layer includes a litter box retaining means and does not
recite where the litter box retaining means is located in relation to the liner
layer as is being argued by Appellant.
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Accordingly, we sustain the Examiner’s rejection of claims 4, 5, 13,
and 14 under 35 U.S.C. § 103(a) as unpatentable over Kasbo, Sides, and
Yananton ʼ273.

Rejection (4) – Obviousness based on Kasbo and Yananton ʼ273
Dependent claims 7 and 16
Claim 7 depends from claim 6, and claim 16 depends from claim 15.
App. Br., Clms. App’x.
The Examiner’s rejection of claims 7 and 16 depends upon the same
unreasonable finding as discussed supra with respect to claims 6 and 15 that
Kasbo’s heat seal line 12 constitutes an adhesive.
For the reasons discussed supra with respect to claims 6 and 15, we
do not sustain the Examiner’s rejection of claims 7 and 16 under 35 U.S.C.
§ 103(a) as unpatentable over Kasbo and Yananton ʼ273.
Dependent claims 8 and 17
Appellant argues claims 8 and 17 as a group and we select claim 8 as
the representative claim. See App. Br. 23-24; see also 37 C.F.R. §
41.37(c)(1)(vii) (2011). Claim 17 stands or falls with claim 8.
Claim 8 depends from claim 1 and recites that “the liner layer further
comprises litter box retaining means.” App. Br., Clms. App’x.
The Examiner makes the same findings for claim 8 as discussed supra
with respect to claim 4 (Ans. 6) and Appellant makes the same arguments
for claim 8 as discussed supra with respect to claim 4.
For the same reasons as discussed supra with respect to claim 4, we
sustain the Examiner’s rejection of claim 8, and claim 17 which falls
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therewith, under 35 U.S.C. § 103(a) as unpatentable over Kasbo and
Yananton ʼ273.

Rejection (5) - Obviousness based on Kasbo, Yananton ʼ273, and Sides
Appellant argues claims 9 and 18 as a group and we select claim 9 as
the representative claim. See App. Br. 24-26; see also 37 C.F.R.
§ 41.37(c)(1)(vii) (2011). Claim 18 stands or falls with claim 9.
Claims 9 depends from claim 1 and recites that “the closure means is
a drawstring.” App. Br., Clms. App’x.
The Examiner makes the same findings for claim 9 as discussed supra
with respect to claim 2 (Ans. 7) and Appellant makes the same arguments
for claim 9 as discussed supra with respect to claim 2 (App. Br. 24-26).
For the same reasons as discussed supra with respect to claim 2, we
sustain the Examiner’s rejection of claim 9, and claim 18 which falls
therewith, under 35 U.S.C. § 103(a) as unpatentable over Kasbo, Yananton
ʼ273, and Sides.

Rejection (6) – Obviousness based on Yananton ʼ204 and Reed
Independent claim 19
Independent claim 19 is directed to a disposable litter system
including “a litter enclosure layer removably attached by opening means to a
portion of the liner layer to create a litter enclosure region.” App. Br., Clms.
App’x.
The Examiner finds Yananton ʼ204 substantially discloses the subject
matter of independent claim 19; however, Yananton ʼ204 “is silent on
wherein the litter enclosure region includes a closure layer and the liner
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layer such that the litter is retained between the closure layer and the liner
layer, and wherein the enclosure region includes opening means.” Ans. 7.
To cure the deficiency of Yananton ʼ204, the Examiner turns to Reed for its
teaching of “a closure layer including opening means (Reed Fig. 1 #27 and
28).” Id. The Examiner concludes that it would have been obvious to one of
ordinary skill in the art to modify Yananton ʼ204 by the teachings of Reed
for “protect[ion] during shipping and storage” since the modification “is
merely the application of a known technique to a known device ready for
improvement to yield predictable results.” Ans. 7-8. The Examiner notes
that Yananton ʼ204 as modified by Reed has Yananton ʼ204’s drawstring 72
as the closure means and the adhesive 28 of Reed as the opening means.
Ans. 8.
Appellant notes that Reed discloses the adhesive strip 28 securing the
cover 27 to the upper planar surface of the lip 15, and that “[t]he cover is
shown only as planar, which when disposed upon the upper planar surface
29 of lip 15 forms no volume between the cover and the plane of the upper
surface 29 of lip 15.” App. Br. 27 (citing Reed, col. 2, ll. 64-56). Appellant
also notes that this has “nothing to do with the volume created by container
11 base 12, peripheral wall 13 and horizontal lip 15.” Id. Appellant then
argues that Reed’s cover 27 and adhesive 28 “does not provide the claimed
‘litter closure layer removably attached by opening means to a portion of the
liner layer to create a litter enclosure region . . . ,’” because “were cover 27
of Reed[,] which requires a planar surface, added to Yananton (‘204)
presumably substantially planar overlying layer 36, no litter enclosure region
results.” Id. Appellant further argues that if the elements of Yananton ʼ204
and Reed are combined in the manner proposed by the Examiner “each
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element clearly could not and would not perform the same function as it
does separately.”
We cannot agree with Appellant’s arguments. The Examiner
proposes to place Reed’s cover 27 having adhesive 28 around its outer
perimeter onto Yananton ʼ204’s sorbent unit 12. Appellant has failed to
explain why this combination would not result in a litter enclosure region or
why each element could not or would not perform the same function it does
separately. Thus, we are not persuaded of error in the Examiner’s rejection
by Appellant’s arguments.
Appellant also argues that a person of ordinary skill in the art would
not be motivated to combine Yananton ʼ204’s sorbent unit 12 with Reed’s
cover 27, because Yananton ʼ204 “clearly prohibits the opening of protective
layer 26 and access to sorbent layer 24 (col. 6, lines 23 – 32) so the claimed
‘opening means’ is clearly disfavored by Yananton (‘204),” and because
Yananton ʼ204 teaches disposition of litter 14 loosely on the surface of layer
36. App. Br. 28.
We are not persuaded of error in the Examiner’s rejection by
Appellant’s arguments because the Examiner has not proposed to modify
Yananton ʼ204 by the opening of protective layer 26 or accessing the sorbent
layer 24. In addition, we are not persuaded of error by the fact that
Yananton ʼ204 teaches disposition of litter 14 loosely on the surface of
sorbent layer 36 because it does not provide any reason why one of ordinary
skill in the art would not consider enclosing the sorbent unit 12 with the
cover 27 of Reed.
Appellant also argues that a person of ordinary skill in the art would
not be motivated to combine Yananton ʼ204 and Reed, because “Reed looks
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to the formation of a solid container 11 for the containing of litter with
enough rigidity (Fig. 4) to support a lid 50 which ‘snaps’ over the walls of
the container 49.” App. Br. 28.
We are not persuaded of error in the Examiner’s rejection by
Appellant’s argument because the Examiner is not modifying Reed, but
rather is modifying Yananton ʼ204’s sorbent unit 12 to include the cover 27
of Reed. Thus, because Reed is not being modified it is immaterial that
Reed requires a solid container 11 for the containing of litter with enough
rigidity to support a lid 50 that snaps over the walls of the container 49.
Accordingly, we sustain the Examiner’s rejection of claim 19 under
35 U.S.C. § 103(a) as unpatentable over Yananton ʼ204 and Reed.
Dependent claim 20
Claim 20 depends from claim 19 and recites that “the opening means
is selected from the group consisting of a pull tab, rip chord [sic – cord],
perforated edged [sic – edge], and adhesive.” App. Br., Clms. App’x.
The Examiner finds that Reed’s cover 27 constitutes the opening
means and the adhesive 28 around the outer perimeter of the cover 27 meets
the adhesive limitation of the Markush group. Ans. 7-8.
Appellant argues that “neither cited art provides the list of opening
means.” App. Br. 29.
The Examiner is not required to show that either Yananton ʼ204 or
Reed discloses an opening means that provides the entire list of pull tab, rip
cord, perforated edge, and adhesive. Rather, the Examiner is only required
to shows that the combination of Yananton ʼ204 and Reed has an opening
means selected from the group consisting of pull tab, rip cord, perforated
edge, and adhesive. Since the Examiner has modified Yananton ʼ204 to
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include the cover 27 of Reed, and the cover 27 of Reed has adhesive 28
around its outer perimeter, we are not persuaded of error in the Examiner’s
rejection by Appellant’s argument.
Accordingly, we sustain the Examiner’s rejection of claim 20 under
35 U.S.C. § 103(a) as unpatentable over Yananton ʼ204 and Reed.

DECISION
We REVERSE the Examiner’s rejections of: claims 6 and 15 under
35 U.S.C. § 102(b) as anticipated by Kasbo; claims 3, 12, and 20 under 35
U.S.C. § 103(a) as unpatentable over Kasbo and Sides; and claims 7 and 16
under 35 U.S.C. § 103(a) as unpatentable over Kasbo and Yananton ʼ273.
We AFFIRM the Examiner’s rejections of: claims 1 and 10 under 35
U.S.C. § 102(b) as anticipated by Kasbo; claims 2, 11, and 19 under 35
U.S.C. § 103(a) as unpatentable over Kasbo and Sides; claims 4, 5, 13, and
14 under 35 U.S.C. § 103(a) as unpatentable over Kasbo, Sides, and
Yananton ʼ273; claims 8 and 17 under 35 U.S.C. § 103(a) as unpatentable
over Kasbo and Yananton ʼ273; claims 9 and 18 under 35 U.S.C. § 103(a) as
unpatentable over Kasbo, Yananton ʼ273, and Sides; and claims 19 and 20
under 35 U.S.C. § 103(a) as unpatentable over Yananton ʼ204 and Reed.
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)(1)(iv).

AFFIRMED-IN-PART

Klh