Munchkin, Inc.

Patent Trials and Appeals BoardMar 30, 2021

2020004872 (P.T.A.B. Mar. 30, 2021)

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. 15/379,457 12/14/2016 Ruth Hsin-Ju Fang MBI-1563US 8837 101332 7590 03/30/2021 MUNCHKIN, INC. C/O MOAZZAM & ASSOCIATES, LLC 7601 LEWINSVILLE ROAD SUITE 304 MCLEAN, VA 22102 EXAMINER SKUBINNA, CHRISTINE J ART UNIT PAPER NUMBER 3754 MAIL DATE DELIVERY MODE 03/30/2021 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 RUTH HSIN-JU FANG, THOMAS E. BIRKERT, and SHIRLEY RODRIGUEZ Appeal 2020-004872 Application 15/379,457 Technology Center 3700 Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and MICHAEL J. FITZPATRICK, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 2 and 4–20. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as MUNCHKIN, INC. Appeal Br. 1. Appeal 2020-004872 Application 15/379,457 2 CLAIMED SUBJECT MATTER The claims are directed to non-slip toilet training devices. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A toilet training device comprising: a substantially circular seat portion having a top surface, a bottom surface, a front portion, a back portion, and a pair of side portions; and a flexible, raised portion comprised of a resilient material that is contiguous with and substantially flush from the top surface and positioned in the front portion that resiliently flexes flat with downward pressure by a toddler. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Weiss US 3,601,822 Aug. 31, 1971 Dunn US 2007/0101482 A1 May 10, 2007 Welch US 2014/0259338 A1 Sept. 18, 2014 REJECTIONS Claims 1, 2, 4–6 and 9–20 are rejected under 35 U.S.C. § 103 as being unpatentable over Welch and Weiss. Final Act. 2. Claims 7 and 8 are rejected under 35 U.S.C. § 103 as being unpatentable over Welch, Weiss, and Dunn. Final Act. 5. OPINION The claims subject to the first rejection are argued as a group. Appeal Br. 4–11. The claims subject to the second rejection are argued based on dependency. Appeal Br. 12. Appeal 2020-004872 Application 15/379,457 3 Appellant’s main argument in response to the Examiner’s rejection is repeated several times in slightly different forms throughout the briefing: neither reference teaches “a flexible, raised portion comprised of a resilient material that is contiguous with and substantially flush from the top surface.” Appeal Br. 4, 5, 7; Reply Br. 1, 2–3. This is true, of course, because the Examiner relies on the combined teachings of Welch and Weiss to arrive at such subject matter. Ans. 4–5. An obviousness rejection is not necessarily demonstrated unsound because no single reference discloses a particular combination or subcombination of claim elements. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Welch already teaches a splashguard 212 that is “contiguous with and substantially flush from [the seat’s] top surface.” Weiss need not also teach this same subject matter to demonstrate the subject matter claimed would have been obvious based on the combined teachings of Welch and Weiss. “Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.” In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citation omitted); Ans. 4. It is true that one benefit of the flexible nature of the splashguard of Weiss is to permit Weiss’s lid to close, and Welch has no such lid, and may not even be compatible with such a lid. Appeal Br. 10. However, Appellant’s argument in this regard ignores the actual motivating benefit disclosed in Weiss and articulated by the Examiner: that such flexibility of the splash guard discourages injury to the child. Final Act. 3 (citing Weiss col. 4, ll. 50–70); see also Weiss col. 1, ll. 34–35. “It is well-established that a determination of obviousness based on teachings from multiple references does not require an actual, physical substitution of elements.” In re Appeal 2020-004872 Application 15/379,457 4 Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012). Thus, we see no error in proposing to incorporate aspects of Weiss’s flexible splash guard for the Examiner’s and Weiss’s stated benefit of injury prevention, without incorporating Weiss’s lid, or, for that matter, the precise arrangement of the interface between Weiss’s splash guard 31 and base 12 section 16 (Appeal Br. 7 (arguing Weiss’s splash guard interface is not “contiguous with and substantially flush”) (emphasis omitted)). Indeed, despite the fact that nearly half a century ago the surfaces of the seat of Weiss were not as contiguous and flush as Appellant’s or Welch’s, Weiss expressly discouraged the use of sharp corners (col. 1, ll. 34–35). The combined teachings of the references would therefore have suggested to a skilled artisan, as of Appellant’s filing date, a preference for the “contiguous” and “flush” nature of Welch’s molded product. It is true that the hard nature of Welch’s splashguard 212 “presents the exact problem that Appellant was attempting to solve.” Appeal Br. 10. However, the evidence before us demonstrates that Weiss solved it before Appellant. See Reply Br. 4. Thus, the Examiner correctly concluded that the claimed subject matter would have been obvious in light of the combined teachings of Welch and Weiss. We agree with the Examiner that Appellant’s arguments that the proposed combination requires a substantial redesign and would compromise the intended purposes of the references are clearly without merit. See Appeal Br. 8–10. As the Examiner correctly points out, Welch already includes componentry that makes it non-unitary (Ans. 3–4 (citing Welch paras. 16, 17, 22); Appeal Br. 8, 9; Reply Br. 1–2) and both references mention how disassembly of such components can be performed Appeal 2020-004872 Application 15/379,457 5 to facilitate cleaning (Ans. 3 (citing Welch para. 16); Weiss col. 4, ll. 67–68 (cited at Final Act. 3); Appeal Br. 8; Reply Br. 3). For the foregoing reasons, we sustain the Examiner’s rejections. CONCLUSION The Examiner’s rejections are AFFIRMED. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4–6, 9– 20 103 Welch, Weiss 1, 2, 4–6, 9– 20 7, 8 103 Welch, Weiss, Dunn 7, 8 Overall Outcome 1, 2, 4–20 RESPONSE 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