CCL LABEL, INC.

Patent Trials and Appeals Board

Aug 24, 2021

2021000983 (P.T.A.B. Aug. 24, 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.
15/233,201 08/10/2016 Tara M. Green 38208-01660 9697
33772 7590 08/24/2021
MCDONALD HOPKINS LLC
600 Superior Avenue, East
Suite 2100
CLEVELAND, OH 44114-2653
EXAMINER
KATCOFF, MATTHEW GORDON
ART UNIT PAPER NUMBER
3725
NOTIFICATION DATE DELIVERY MODE
08/24/2021 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):
ipmailbox@mcdonaldhopkins.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TARA M. GREEN, REGINA A. REICHERT, MONICA L. BROX
and RONALD UGOLICK
____________

Appeal 2021-000983
Application 15/233,201
Technology Center 3700
____________

Before BIBHU R. MOHANTY, BRADLEY W. BAUMEISTER, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

Opinion for the Board filed by Administrative Patent Judge MOHANTY.

Opinion Dissenting filed by Administrative Patent Judge BAUMEISTER.

MOHANTY, 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 25, 27, 29–35, 37–42, and 44–47. We
have jurisdiction 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). Appellant identifies the real party in interest as CCL Label, Inc.
(Appeal Br. 3).
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CLAIMED SUBJECT MATTER
The Appellant’s claimed invention relates to sheet divider with tabs.
(Spec., para. 2). Claim 25, reproduced below, is representative of the
subject matter on appeal.

25. A set of sheet dividers, comprising:
a first plurality of dividers, each divider in the first
plurality thereof including: (i) a sheet having a width Wa
measured between opposing first and second edges of the sheet,
and (ii) a tab extending by a width TWa from the second edge
of the sheet, each of said tabs in the first plurality of dividers
being arranged at a location along the second edge of its
respective sheet that is different from the location of all the
other tabs in the first plurality of dividers such that when the
dividers of the first plurality of dividers are stacked one over
the other, the tabs thereof do not overlap one another;
a second plurality of dividers, each divider in the second
plurality thereof including: (i) a sheet having a width Wb
measured between opposing first and second edges of the sheet,
and (ii) a tab extending by a width TWb from the second edge
of the sheet, each of said tabs in the second plurality of dividers
being arranged at a location along the second edge of its
respective sheet that is different from the location of all the
other tabs in the second plurality of dividers such that when the
dividers of the second plurality of dividers are stacked one over
the other, the tabs thereof do not overlap one another; and
a table-of-contents sheet bearing first and second
delineated spaces, wherein the first delineated spaces
corresponding to the tabs of the first plurality of dividers and
the second delineated spaces corresponding to the tabs of the
second plurality of dividers are arranged in two adjacent
columns on the table-of-contents sheet in an offset arrangement,
wherein said delineated spaces disposed on the table-of-
contents sheet correspond to a particular tab of the first or
second pluralities of dividers when the table-of-contents sheet
is
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arranged in a stack with the first and second pluralities of
dividers,
wherein a combined width of Wb and TWb is greater
than a combined width of Wa and TWa when the first edges of
the first plurality of dividers are aligned with the first edges of
the second plurality of dividers, Wb is greater than Wa,
whereby the second edges of the second plurality of dividers
extend further from their respective second edges than the tabs
of the first plurality of dividers when all dividers in the first
plurality are stacked above the dividers in the second plurality.

THE REJECTION
The Examiner relies upon the following as evidence in support of the
rejections:
Name Reference Date
Làlonde US 4,669,754 June 2, 1987
Kline US 5,468,085 Nov. 21, 1995
Windows Secrets
Forum 
http://windowssecrets.com/foru
ms/showthread.php/50961-
Table-of-Contents-with-2-
columns-(Word-XP) 

The following rejection is before us for review:
Claims 25, 27, 29–35, 37–42, and 44–47 are rejected under 35 U.S.C.
§ 103 as unpatentable over Làlonde, Kline, and Windows Secrets Forum.

FINDINGS OF FACT
We have determined that the findings of fact in the Analysis section
below are supported at least by a preponderance of the evidence.2

2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent Office).
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ANALYSIS
The Appellant argues that the rejection of claim 25 under 35 U.S.C.
§ 103 as unpatentable over Làlonde, Kline, and Windows Secrets Forum is
improper because the cited prior art fails to disclose the claim limitation
requiring that “all dividers in the first plurality are stacked above the
dividers in the second plurality” (Appeal Br. 12–14; Reply Br. 5). The
Appellant also argues that the rejection uses impermissible hindsight and
would not have been obvious (Appeal Br. 21, 22; Reply Br. 17–19).
In contrast, the Examiner has determined that the rejection of record is
proper (Final Act. 2–6; Ans. 3–7).
We agree with the Appellant. Claim 25 requires in part:
wherein a combined width of Wb and TWb is greater
than a combined width of Wa and TWa when the first edges of
the first plurality of dividers are aligned with the first edges of
the second plurality of dividers, Wb is greater than Wa,
whereby the second edges of the second plurality of dividers
extend further from their respective second edges than the tabs
of the first plurality of dividers when all dividers in the first
plurality are stacked above the dividers in the second plurality.

(Claim 25, emphasis added). Here, the claim limitation requires that
“wherein . . . when the first edges of the first plurality of dividers are aligned
with the first edges of the second plurality of dividers,” it is required to have
“a first plurality of dividers” having a width Wa and a tab extending that
width by TWa; and “a second plurality of dividers” having a width Wb and a
tab extending that width by TWb. The cited claim limitation also requires
that the combined width of Wb and TWb is greater than the combined width
of Wa and TWb and that “all dividers in the first plurality are stacked above
the dividers in the second plurality.” Again, the claim limitation above
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requires with patentable weight that this takes place when “wherein . . .
when the first edges of the first plurality of dividers are aligned with the first
edges of the second plurality of dividers,” and in contrast, Làlonde clearly
shows in Figure 2 cited in the rejection of record the edges of sheet 14 and
16 spaced apart and clearly “not aligned” as claim requires.
Further, the rejection of record relies on Làlonde at Figure 2 to
disclose the claim limitation that “all dividers in the first plurality are
stacked above the dividers in the second plurality.” We disagree as Làlonde
at Figure 2 shows a first plurality of dividers (JAN, FEB, MAR, APR) and a
second plurality of dividers with a larger width (14, 15, 18, 22, 27, 30). As
Figure 2 of Làlonde shows the first plurality of dividers (JAN, FEB, MAR,
APR) placed between second dividers 14 and 15 the plurality of first
dividers are not stacked above all the plurality of second plurality of dividers
as the claim requires. The Examiner at page 3 of the Answer states that
index sheet 14 is not part of the second plurality. This position is not
persuasive as Làlonde in the Abstract makes a distinction between a
“secondary index section” of sheets that is narrower than the sheets of the
“primary divider index sheet[s].” Further, Làlonde at column 8, lines 43–46
refers to sheet 14 as a “primary divider index sheet.” Thus, the argued claim
limitation is not shown in the cited prior art.
The Final Rejection of record at page 5 also admits that the
combination does not teach the “which delineated space of the table of
contents receives indicia from which tabs” and does not teach “the specific
arrangement and/or content of indicia” but states that this is non-patentable
printed matter. Here, the claim limitations in dispute are not drawn to the
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printed matter (what is written on the indicia tabs) but rather to the physical
layout of the labels themselves, and is properly accorded patentable weight.
The Appellant also argued at pages 17–21 of the Appeal Brief that the
Windows Secrets reference is non-analogous art. We agree with this
contention. The Windows Secrets reference is not related to physical
dividers and notebook indicia, but rather, computer display imaging and
makes no relation to physical tabs in a notebook divider system. Further, the
Windows Secrets reference states the format is used to “save space” and has
nothing to do with having the table be aligned with the tabs of different
sizes.
Regardless, even taking the Examiner’s rationale that the index sheet
14 in Làlonde was not included in the second plurality somehow, and that
Windows Secrets was from a related art, we agree with the Appellant that
the cited combination of references would not have been obvious. In KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) the Supreme Court at 418
noted that in an obviousness analysis that “[R]ejections 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.” Here, the rejection lacks
articulated reasoning with rational underpinnings without impermissible
hindsight to sustain a conclusion of obviousness. Here, the rejection fails to
present articulated reasoning with rational underpinnings to modify the
specific index system of Làlonde modified by the teachings of Kline, and the
teaching of Windows Secrets Forum in the specific manner claimed to meet
the claimed limitations without impermissible hindsight.
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Accordingly, the rejection of claim 25 and its dependent claims is not
sustained.
Independent claims 34 and 42 contain similar limitations to those
addressed in claim 25, and the rejection of these claims and their dependent
claims is not sustained for the same reasons given above.

CONCLUSIONS OF LAW
We conclude that Appellant has shown that the Examiner erred in
rejecting claims 25, 27, 29–35, 37–42, and 44–47 under 35 U.S.C. § 103 as
unpatentable over Làlonde, Kline, and Windows Secrets Forum.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
25, 27, 29–
35, 37–42,
44–47
103 Làlonde, Kline,
Windows Secrets
Forum
25, 27, 29–35,
37–42, 44–47

REVERSED

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BAUMEISTER, Administrative Patent Judge, dissenting.
I.
Appellant first argues that the cited combination “fails to teach the
claimed ‘stacked’ and/or ‘visible’ arrangements” of the dividers. Appeal
Br. 11 (emphasis omitted). More specifically, Appellant contends, for
example, “claim 25 recites that ‘all dividers in the first plurality are stacked
above the dividers in the second plurality.’” Id. at 12. Appellant then argues
that Làlonde does not teach this limitation because “Làlonde teaches the use
of a loose leaf binder system having primary dividers intermeshed with a
plurality of secondary dividers, wherein the tabs associated with the
secondary dividers are not stacked and/or visible, as [claimed].” Id. at 13.
According to Appellant, “[t]his loose leaf binder system includes
sections that stagger the primary and secondary divider sheets and associated
tabs, wherein only the tabs associated with the primary dividers are viewable
when two adjacent secondary dividers are opened in a non-stacked
arrangement.” Appeal Br. 13. Appellant summarizes, “Làlonde does not
disclose or teach ‘all dividers in the first plurality are stacked above the
dividers in the second plurality’ . . . as recited . . . because the primary
dividers and tabs of Làlonde are intermeshed within selected secondary
dividers.” Id. at 14.
Appellant’s argument is unpersuasive because it is not commensurate
in scope with the language of claim 25. The disputed claim language reads
more fully, as follows:
wherein a combined width of Wb and TWb is greater than
a combined width of Wa and TWa when the first edges of the
first plurality of dividers are aligned with the first edges of the
second plurality of dividers, Wb is greater than Wa, whereby the
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second edges [sic:tabs] of the second plurality of dividers extend
further from their respective second edges than the tabs of the
first plurality of dividers when all dividers in the first plurality
are stacked above the dividers in the second plurality.
Appeal Br. 25 (emphasis added).3
These “wherein” and “whereby” clauses do not set forth some
particular order in which the various dividers must be stacked in order for
the claim to be anticipated. Rather, these clauses merely further describe the
relative physical widths of the two sets of dividers and their tabs. That is,
the wherein and whereby clauses merely explain that due to the respective
widths of the first and second dividers, if the first dividers were to be stacked
over the second dividers, then one would be able to see the tabs of the
second plurality of dividers behind the tabs of the first plurality of dividers.
Not only does the plain meaning support interpreting the disputed
claim language as merely setting forth a description of the dividers’
respective physical dimensions, but the practical effect of adopting
Appellant’s proffered interpretation also evidences that Appellant’s
proposed interpretation is unreasonable. Under the broader interpretation
that I adopt, infringement occurs when a manufacturer produces and sells a
collection of the two sets of dividers and the table-of-contents (TOC) sheet,
regardless of what order the manufacturer stacks these dividers and the TOC
sheet. That is, should the present claim issue as a patent, Appellant (who

3 I understand claim 25’s language, “whereby the second edges of the second
plurality of dividers,” includes a drafting mistake, intending to recite,
whereby the tabs of the second plurality of dividers. Otherwise, the claim
would not make sense in that it is a non sequitur for the second edges of the
second plurality of dividers to extend from the second edges (i.e., to extend
from themselves).
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would then be the Patent Owner) would be able to sue the manufacturer
merely for making and selling the collection of dividers and TOC sheet.
But under the narrow claim interpretation that Appellant argues and
that the Majority adopts, a manufacturer that makes and sells the two sets of
dividers and the TOC sheet still could avoid infringing claim 25 merely by
stacking the collection of dividers in an intermeshed arrangement, similar to
Làlonde’s. Under Appellant’s interpretation, infringement would not occur
until an end-user subsequently re-arranges the intermeshed dividers so that
all of the first dividers are stacked above all of the second dividers. Under
the interpretation argued by Appellant, Appellant (qua Patent Owner) then
would only be able to sue end-users—not the manufacturer.
For these reasons, the interpretation argued by Appellant and adopted
by the Majority is not even a reasonable interpretation, much less the
broadest reasonable interpretation.
Moreover, even if we adopt Appellant’s unreasonably narrow claim
construction that requires a specified stacking order, the Examiner still
establishes that Làlonde discloses providing a plurality of narrower dividers
stacked on top of a plurality of wider dividers. Final Act. 3. More
specifically, Figure 3 of Làlonde depicts a left side of a three-ring binder in
which a plurality of narrower dividers 17 (labeled JAN, FEB, MAR, APR)
are stacked on top of a wider divider 14. And Figure 4 of Làlonde depicts a
right side of a three-ring binder in which a plurality of narrower dividers 19
(numbered 1 through 25) are stacked on top of a plurality of wider dividers
31, 22, 27, 30.
It is of no relevance that closing the three-ring binders, as depicted in
an open state in Figures 3 and 4, may result in additional wider dividers
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being stacked on top of narrower dividers. Claim 25 employs the open-
ended transition phrase “comprising.” As such, claim 25 reads on a stack of
dividers that not only has a first and second plurality of dividers, as claimed,
but also may include additional dividers stacked above or below the two
plurality of dividers that are claimed.
II.
Claim 25’s limitations regarding the table-of-contents (TOC) sheet
read, as follows:
a table-of-contents sheet bearing first and second
delineated spaces, wherein the first delineated spaces
corresponding to the tabs of the first plurality of dividers and the
second delineated spaces corresponding to the tabs of the second
plurality of dividers are arranged in two adjacent columns on the
table-of-contents sheet in an offset arrangement,
wherein said delineated spaces disposed on the table-of-
contents sheet correspond to a particular tab of the first or second
pluralities of dividers when the table-of-contents sheet is
arranged in a stack with the first and second pluralities of
dividers.
The Examiner determines that the specific arrangement and content of
the claimed indicia on the TOC sheet does not further patentably distinguish
over the prior art because the indicia is not functionally related to the
substrate. Final Act. 5 (citing In re Gulack, 703 F.2d 1381 (Fed. Cir. 1983)).
Appellant does not dispute that the claim language is directed to
printed matter, but argues, “Gulack actually supports Applicant’s position
that the TOC printed matter should be given patentable weight as [the]
Gulack Court actually rejected the Board’s conclusions and held that there
did indeed exist a functional relationship between printed matter and the
substrate of the claims.” Appeal Br. 16.
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Appellant further argues that the presently claimed configuration of
dividers
amounts to an arrangement of a particular sequence that amounts
to a “functional relationship.” The delineated spaces of the TOC
sheet in combination with the dividers in a stacked orientation
enables a user to identify, distinguish, label, and quickly select a
tab/divider associated with a particular delineated space. It has
particular functionality when the claimed TOC is combined with
the plurality of tabs when they are both visible and in a stacked
arrangement as claimed.
Appeal Br. 17.
These arguments are unpersuasive that the claimed arrangement of
indicia can serve as a patentable distinction over the cited art. The Gulack
court explained that in considering non-functional descriptive material, such
as printed matter, “what is significant here is not structural but functional
relationship.” Gulack, 703 F.2d at 1386; see also id. (“[T]he critical
question is whether there exists any new and unobvious functional
relationship between the printed matter and the substrate.”).
The Gulack court went on to explain why Gulack’s invention
provided an unobvious functional relationship to the circular-band substrate
beyond the relationship that existed in the prior-art reference, Wittcoff:
Wittcoff discloses the application of printed matter to a band.
The printed matter suggested by Wittcoff is data that is to be
committed to memory, such as addition, subtraction,
multiplication, history dates, historical personages, and the like.
The data items are independent, bearing no direct relation to the
other data entries on Wittcoff’s band. The relationship of the
Wittcoff data to the band is for purposes of support and display.
The data must be imprinted on the band so that the answer to the
inquiry displayed on the outer surface of the band is visible when
viewed from inside the hat through the aperture. Wittcoff
discloses an endless band, yet the areas of printed matter
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displayed on the Wittcoff band are not arranged in any particular
sequence.
The appealed claims, on the other hand, require a particular
sequence of digits to be displayed on the outside surface of a
band. These digits are related to the band in two ways: (1) the
band supports the digits; and (2) there is an endless sequence of
digits—each digit residing in a unique position with respect to
every other digit in an endless loop. Thus, the digits exploit the
endless nature of the band.
The differences between the appealed claims and Wittcoff reside
in appellant’s particular sequence of digits Q, and in the
derivation of that sequence of digits. These features are critical
to the invention disclosed by the appealed claims. Wittcoff
neither discloses nor suggests either feature.
Gulack, 703 F.2d at 1386–87 (emphasis added).
In the present case, the purpose of the table of content’s delineated
spaces is to correspond to particular respective tabs so that a user can mark
on the spaces with various indicia “to further help identify the various
sections of sheets as segregated by the dividers.” Spec. ¶ 28. But
identifying information in various corresponding sections, as segregated by
the dividers, is exactly the same function that every table of contents already
performs.
Furthermore, claim 25 does not set forth that the delineated space be
located in some particular spatial orientation relative to the tab with which it
is intended to correspond. For example, claim 25 does not require that the
claimed delineated space be disposed horizontally relative to the tab with
which it is intended to correspond, much less in “substantially equal height
as the corresponding tabs,” as disclosed by Appellant’s Specification. E.g.,
Spec. ¶ 28.
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Claim 25 merely requires that the delineated spaces be provided in
two columns in an offset arrangement. But Appellant provides insufficient
evidence that providing spaces for a table of content in two columns that are
offset from each other, as claimed, provides any new functional relationship
to the substrate—to the sheet of paper that possesses the delineated spaces.
See Appeal Br. 15–17.
III.
Appellant additionally presents various argument in relation to the
“Windows Secrets” reference. Appeal Br. 17–21. These arguments are
rendered moot by the fact that the delineated spaces on the TOC sheet
constitute non-functional printed matter, which, as just explained, cannot be
relied upon to further patentably distinguish the invention over the prior art.
For the sake of completeness, though, I note that Appellant’s arguments
regarding Windows Secrets are, likewise, unpersuasive.
Appellant first contends that the Windows Secrets reference is non-
analogous art because Windows Secrets is not reasonably pertinent. Appeal
Br. 18. According to Appellant, Windows Secrets does not address the same
problem addressed by the claimed invention, and it serves a different
purpose than the features of the claims. Id.
This argument is unpersuasive because claim 25 recites a TOC sheet
that has delineated spaces arrayed in two columns. Windows Secrets is
relied upon to teach that it was known to provide a table of contents in two
columns. As such, Windows Secrets is reasonably pertinent to the task of
providing this particularly specified visual layout for a table of contents.
In support of its general contention that Windows Secrets constitutes
non-analogous art, Appellant argues that Windows Secrets is a printout of an
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excerpt of a website comment section and that “[t]he comments are from
anonymous sources on the internet discussing how to use software program
Word XP to create two columns.” Appeal Br. 18–19; see also id. at 17–18.
Appellant further argues,
The columns discussed in the comment section of “Windows”
have no association with dividers or with tabs, nor is there any
suggestion that creation of a second column has any purpose
beyond improved utilization of space on a Word XP document
page. Further, there is no indication that the two columns
discussed in the “Windows” website comment section contain
delineated spaces corresponding to tabs among a plurality of
dividers of varying widths arranged in two adjacent columns on
a table-of-contents sheet in an offset arrangement.
Appeal Br. 19.
This argument is unpersuasive for multiple reasons. First, Appellant
does not explain why it is at all relevant that the website’s comments are
from anonymous sources. More importantly, Appellant’s arguments
constitute a piecemeal attack on the Windows Secrets reference individually.
The Examiner does not rely on Windows Secrets for teaching that the
table of contents contains delineated spaces or that the TOC entries may
correspond to tabs of dividers. The Examiner relies on Kline for those
teachings. Final Act. 4. The Examiner instead relies on Windows Secrets to
support the proposition that it was well known to provide a table of contents
in two columns that are laterally offset from each other. Id. One cannot
show nonobviousness by attacking references individually where the
rejections are based on combinations of references. See In re Keller, 642
F.2d 413, 426 (CCPA 1981).
Appellant then argues, “[t]he Windows internet comment section is
silent as to any functional relationship between the creation of two columns
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in Word XP and the stacking of pluralities of sheet dividers bearing tabs that
are all visible when in a stacked position,” as claimed. Appeal Br. 20. This
argument is unpersuasive because, just like the last argument, this argument
constitutes a piecemeal attack on the Windows Secrets reference
individually. The Examiner relies on Làlonde for teaching stacking tabbed
dividers. Final Act. 2–3. The Examiner relies on Kline for providing a set
of tabbed dividers with a table of contents that has delineated spaces. Id.
at 4.
IV.
Appellant next contends that the obviousness rejection is based upon
impermissible hindsight. Appeal Br. 21–22. In support of this position,
Appellant argues that the following three limitations are absent from the
cited prior art and are only present in Appellant’s claims and Specification,
as originally filed:
(i) all the dividers in the first plurality are stacked about [sic:
above] the dividers in the second plurality;
(ii) all dividers in the first plurality are above the dividers in
the second plurality, providing visibility of all tabs when in a
stacked position; and
(iii) the first plurality of dividers and the second plurality of
dividers are configured to be stacked such that the first plurality
of dividers are stacked above the second plurality of dividers
providing visibility of all tabs when in the stacked position, are
absent from the cited art.
Id. at 22.
These arguments are unpersuasive because the cited art does
teach these three limitations. See Section I of this Dissenting Opinion,
supra.
For these reasons, I would affirm the Examiner’s rejections.