Sutherland Products, Inc.

Patent Trials and Appeals BoardDec 31, 2020

2020001358 (P.T.A.B. Dec. 31, 2020)

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. 15/432,403 02/14/2017 Charles T. Sutherland III 2870/9US 1076 19148 7590 12/31/2020 Shumaker, Loop & Kendrick, LLP 101 South Tryon Street Suite 2200 Charlotte, NC 28280-0002 EXAMINER KHAN, AMINA S ART UNIT PAPER NUMBER 1761 MAIL DATE DELIVERY MODE 12/31/2020 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 CHARLES T. SUTHERLAND III, STUART MORGAN SUTHERLAND, and JAMES RICHARD DANIEL SUTHERLAND1 _____________ Appeal 2020-001358 Application 15/432,403 Technology Center 1700 ______________ Before TERRY J. OWENS, JOHN A. EVANS, and BRIAN D. RANGE, Administrative Patent Judges. Opinion for the Board filed by Administrative Patent Judge EVANS. Opinion concurring filed by Administrative Patent Judge OWENS. EVANS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is a decision on appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of Claim 11, the sole pending claim. Appeal Br. 9. We have jurisdiction over the pending claim under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). The Appeal Brief identifies Sutherland Products, Inc., as the real party in interest. Appeal Br. 7. Appeal 2020-001358 Application 15/432,403 2 INVENTION The invention is directed to a method of detoxifying a load of fabric. See Abstract; Claim 11. Claim 11, the sole pending claim, is reproduced below. 11. A method of detoxifying a load of fabric consisting of: providing plurality of pouches wherein each pouch consists of a paper pouch and a powder detergent sealed within the paper pouch and wherein the paper pouch dissolves upon contact with liquid water thereby releasing the powder detergent; cleaning the washing machine by placing a quantity of rags into a washing machine, placing one of the pouches into the washing machine, and operating the washing machine; selecting the load of fabric to detoxify, placing the load of fabric into the washing machine, placing one of the pouches into the washing machine, and operating the washing machine; placing one of the pouches into the washing machine after the washing machine has washed the fabric in the step above, and operating the washing machine; placing one of the pouches into the washing machine after the washing machine has washed the fabric in the step above, and operating the washing machine; and removing the detoxified fabric from the washing machine; wherein the paper pouch is made from Carboxymethyl Cellulose; wherein pouch has a plain white color and is characterized by an absence of any other color; Appeal 2020-001358 Application 15/432,403 3 wherein the powder detergent is a laundry detergent for cleaning fabric, wherein the laundry detergent consists of Sodium Carbonate, C12-15 Pareth-2, and Sodium Metasilicate; and wherein the pouch is characterized by a lack of any fillers other than the powder detergent itself and the powder detergent is characterized by a lack of any perfumes, any coloring agents, and any brighteners; wherein the pouch is produced on a form/fill machine; wherein the paper pouch and the powder detergent is safe for septic wastewater treatment systems, biodegradable, and hypoallergenic; and wherein the paper pouch is non-toxic. PRIOR ART Name2 Reference Date Ciallella US 4,806,261 Feb. 21, 1989 Meier US 2009/0183317 A1 July 23, 2009 Claude, Blog Post, “Charles Soap Inc, Laundry Powder, https://translate.google.com/translate?hl=eng&sl=ko&u=http://m.blog.naver. com/claude_b/140191203896&prev=search. 2 All citations herein to the references are by reference to the first named inventor/author only. Appeal 2020-001358 Application 15/432,403 4 REJECTIONS3 AT ISSUE4 1. Claim 11 stands rejected under 35 U.S.C. § 103 as obvious over Ciallella and Claude. Non-Final Act. 3–4. 2. Claim 11 stands rejected under 35 U.S.C. § 103 as obvious over Ciallella, Claude, and Meier. Non-Final Act. 5–4. ANALYSIS We have reviewed the rejections of Claim 11 in light of Appellant’s arguments that the Examiner erred. We have considered in this Decision only those arguments Appellant actually raised in the Briefs. Any other arguments which Appellant could have made but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). We provide the following explanation to highlight and address specific arguments and findings primarily for emphasis. We consider Appellant’s arguments as they are presented in the Appeal Brief and the Reply Brief. WHETHER CLAUDE IS AVAILABLE AS PRIOR ART. Appellant contends the “Examiner has not submitted ‘sufficient proof’ of the publication date of the Claude reference”. Appeal Br. 12 (citing 3 The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA. Final Act 2. 4 Throughout this Decision, we refer to the Appeal Brief (“Appeal Br.”) filed March 29, 2019, the Reply Brief (“Reply Br.”) filed December 9, 2019, the Final Office Action (“Final Act.”) mailed October 29, 2018, the Examiner’s Answer mailed October 9, 2019, and the Specification (“Spec.”) filed February 14, 2017. Appeal 2020-001358 Application 15/432,403 5 MPEP 2128 II.A) (quoting In re Wyer, 655 F.2d 221, 227 (CCPA 1981)). Appellant argues: Accordingly, whether information is printed, handwritten, or on microfilm or a magnetic disc or tape, etc., the one who wishes to characterize the information, in whatever form it may be, as a ‘printed publication’ . . . should produce sufficient proof of its dissemination or that it has otherwise been available and accessible to persons concerned with the art to which the document relates and thus most likely to avail themselves of its contents. Id. Appellant argues the Claude document does not have a publication date, but at most has a date, October 14, 2017, on which the Examiner retrieved the webpage. Appeal Br. 13. The Examiner finds “the blog posting by Claude clearly has a posting date of June 15, 2013.” Ans. 5–6. The Examiner finds the reference clearly shows the Blogger’s name, Claude, and the June 15, 2013 posting date. Ans. 6. To establish that a reference is a printed publication the Examiner must show that the reference “has been disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art, exercising reasonable diligence, can locate it.” In re Wyer, 655 F.2d 221, 226 (CCPA 1981), quoting I.C.E. Corp. v. Armco Steel Corp., 250 F.Supp. 738, 743 (SD NY 1966). The Examiner finds: “Claim 11 is rejected under 35 U.S.C. § 103 as being unpatentable over Ciallella (US 4,806,261) in view of Claude (Charlies Soap Inc. Laundry Powder).” Non-Final Act. 3. The Examiner further finds: “Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Ciallella (US 4,806,261) in view of Claude (Charlies Soap Appeal 2020-001358 Application 15/432,403 6 Inc. Laundry Powder) and further in view of Meier (US 2009/0183317).” Non-Final Act. 5. Ciallella and Meier are each specified by a patent number in contrast, the Claude reference is not provided bibliographic information sufficient to allow its retrieval. Indeed, “whether a reference is a ‘printed publication’ is a ‘case-by- case inquiry into the facts and circumstances surrounding the reference’s disclosure to members of the public.’” Jazz Pharm., Inc. v. Amneal Pharm., LLC, 895 F.3d 1347, 1356 (Fed. Cir. 2018) (quoting In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004)). The “examination context involves a burden-shifting framework under which the USPTO can shift the burden to the applicant to come forward with rebuttal evidence or argument to overcome a prima facie case.” Ex parte Grillo-Lopez, Appeal 2018-006082 (Decision on Request for Rehearing), slip op. 2 (PTAB Jan. 21, 2020) (precedential) (citing Ex Parte Albert, 18 USPQ 2d 1325 (BPAI 1984) (“[T]he examiner met his burden of proof by setting forth the nominal publication date. The Patent and Trademark Office is in no position to establish anything beyond that.”). Appellant acknowledges the reference shows “June 15, 2013,” but argues nothing states this is a publication date, or provides any indication that the original, untranslated document was posted or published on such date. Reply Br. 3. Appellant re-alleges a prior argument that the June 15, 2013, date could refer to any number of dates and could be an error introduced by the Google Translate algorithm applied to the original posting, which is not in English. Id. Appellant argues “[t]here is simply no way of knowing or authenticating this internet page, which was apparently retrieved and translated by the Examiner in late 2017.” Id. Appeal 2020-001358 Application 15/432,403 7 In response to Appellant’s contention that Claude is not a proper reference, the Examiner finds it is retrievable through a first web address5. Ans. 5. We navigated the internet to that address and were directed to a Korean-language web page that we entitled: “Korean Blog.” Claude, per se, is associated with a second, different web address.6 We were unable to determine a relationship between the Claude reference and the Korean Blog. Moreover, we failed to find the date “June 15, 2013” as being disclosed by the Korean Blog. We find Claude is a machine translation of a foreign document the Examiner has not made of record. The Examiner has not adequately established that the document would have been obtainable through reasonable diligence by one of ordinary skill in the art so as to verify the content and publication date of the machine translation. Thus, the Examiner has not established that Claude is a valid printed publication. In view of the foregoing, we decline to sustain the rejection of Claim 11 under 35 U.S.C. § 103 as obvious over Ciallella and Claude or as obvious over Ciallella, Claude, and Meier. 5 https://m.blog.naver.com/PostList.nhn?blogid=claude_b¤tPage=12. 6 https://translate.google.com/translate?hl=en&sl=ko&u=http://m.blog.naver.c om/claude_b/140191203896&prev=search. Appeal 2020-001358 Application 15/432,403 8 CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 11 103 Ciallella, Claude 11 11 103 Ciallella, Claude, Meier 11 Overall 11 REVERSED Appeal 2020-001358 Application 15/432,403 9 OWENS, Administrative Patent Judge, concurring. Rejection over Ciallella in view of Claude To establish that a reference is a printed publication, the Examiner must show that the reference “has been disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art, exercising reasonable diligence, can locate it.” In re Wyer, 655 F.2d 221, 226 (CCPA 1981) (quoting ICE Corp. v. Armco Steel Corp., 250 F. Supp. 738, 743 (S.D.N.Y. 1966)). Claude is a machine translation of a foreign document the Examiner has not made of record. The foreign document does not appear to be obtainable through reasonable diligence by one of ordinary skill in the art to verify the content and publication date of the machine translation. Thus, the Examiner has not established that Claude is a valid printed publication. The Appellant’s claim requires detoxifying a load of fabric by washing rags in a washing machine to clean the washing machine, and detoxifying the load of fabric by washing it in the washing machine three times. Ciallella discloses a water-dissolvable cellulosic packet covered on its interior surfaces with water soluble polyvinyl alcohol and containing a synthetic organic laundry detergent (col. 20, ll. 44–59). To use the detergent packets “the consumer needs only to add the required or desired number of them to the washing machine” (col. 15, ll. 44–46). “[F]or a 0.12% concentration of detergent, to be employed against especially heavily soiled laundry, one could employ two packets” (col. 4, ll. 24–27). Claude discloses a laundry detergent (Charlie’s Soap) which “is not a disinfectant” (p. 2) and is used in an amount of “up to 2 tbsp. for really dirty Appeal 2020-001358 Application 15/432,403 10 loads” (Id.). Claude teaches: “For stubborn stains, treat with Charlie’s Soap Laundry Pre-Spray” (Id.). The Examiner concludes (Non-final Rej. 4): It would have been obvious to one of ordinary skill in the art at the time the invention was made to do a load of laundry including conventionally washed rags, which is fabric which meets the claimed limitation of rags, with the claimed detergent pouch and following with another cycle of a load of new laundry which is washed multiple times to remove hard set in stains with multiple cycles and multiple pouches. Ciallella does not disclose multiple washes for heavily soiled laundry but, rather, indicates that such laundry can be cleaned with one wash using two detergent packets (col. 4, ll. 24–27). The Examiner does not establish, in view of Claude’s teaching that up to 2 tbsp. of Charlie’s Soap is used for really dirty loads and Charlie’s Soap Laundry Pre-Spray is used for stubborn stains (p. 2), Claude would have led one of ordinary skill in the art to wash heavily soiled laundry multiple times with Charlie’s Soap. The Examiner finds that “[i]t is conventional in laundering to run multiple full laundry cycles, each cycle using a new pouch of detergent to cleanse tough stains that aren't fully removed in the previous cycle” (Non- final Rej. 4). Ciallella’s and Claude’s disclosures do not support that finding. Rejection over Ciallella in view of Claude and Meier Meier discloses a laundry detergent comprising a core containing a machine care agent including at least one antimicrobial agent, surrounded by multiple layers of active ingredient which are dissolved/dispersed sequentially from outside to inside during the detergent’s use in an automatic washing machine (¶¶ 227–230, 232–234). Alternatively or in combination, Appeal 2020-001358 Application 15/432,403 11 the machine care agent can be on the outside of the detergent such that the washing machine is cared for/disinfected before and/or after the multiple layers of active agent have been dissolved/dispersed (¶ 231). The detergent is in an elastic bag which has small openings through which wash water enters and dissolved/dispersed detergent leaves (¶¶ 263–266). The bag is placed in the washing machine drum and left there for 2 to 60 wash or treatment stages until all of the detergent in the bag has been dissolved/dispersed (¶¶ 269–271). The Examiner finds (Non-final Rej. 5): “Meier teaches it is known to use pouched detergent packets which disinfect the washing machine prior to washing the laundry (paragraph 0231). Meier further teaches using the same detergent in multiple cycles (paragraph 0270).” Meier’s 20–60 wash stages are the number of wash stages during which a detergent-containing bag is used, not the number of washing cycles of the same load. The Examiner does not establish that Meier would have suggested, to one of ordinary skill in the art, washing a load of fabric multiple times. Conclusion The Examiner has not set forth a factual basis that is sufficient to support a conclusion of obviousness of the Appellant’s claimed method. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“A rejection based on section 103 clearly must rest on a factual basis, and these facts must be interpreted without hindsight reconstruction of the invention from the prior art.”). I concur, therefore, in the reversal of the rejections.