Ex Parte Allen

Patent Trial and Appeal Board

Aug 28, 2018

14529581 (P.T.A.B. Aug. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/529,581 10/31/2014
27752 7590 08/30/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Matthew Richard Allen
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.
13146 9881
EXAMINER
BUI,LUANKIM
ART UNIT PAPER NUMBER
3728
NOTIFICATION DATE DELIVERY MODE
08/30/2018 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):
centraldocket.im @pg.com
pair_pg@firsttofile.com
mayer.jk@pg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW R. ALLEN
Appeal2017-003842
Application 14/529,581 1
Technology Center 3700
Before JOHN C. KERINS, GEORGE R. HOSKINS, and FREDERICK C.
LANEY, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Matthew R. Allen (Appellant) appeals under 35 U.S.C. § 134(a) from a final
rejection of claims 1 and 4--7. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 According to Appellant the real party in interest is The Proctor & Gamble
Company. Br. 1
Appeal2017-003842
Serial No. 14/529,581
THE INVENTION
Appellant's invention is directed to a packaged consumer product. Claim 1,
reproduced below, is illustrative:
1. A packaged consumer product comprising:
a package container;
a consumer product disposed within the package container;
a package closure disposed in communication with the package
container; and
an indicia comprising an array of visual elements disposed upon
adjacent surfaces of the package container and package closure,
an interface between the package container and the package closure
wherein the indicia comprises an image-free zone corresponding to the
location of the interface.
REJECTIONS
The Examiner rejects:
(i) claims 1 and 4--7 under 35 U.S.C. § 102(a)(2) as anticipated by O'Keefe
(US 7,614,498 B2; issued November 10, 2009); and
(ii) claims 1 and 5-7 under 35 U.S.C. § 102(a)(2) as anticipated by Cheng
(US 2005/0167307 Al; published August 4, 2005).
ANALYSIS
Rejection (i) - claims 1 and 4-7 over O 'Keefe
The Examiner finds that O 'Keefe discloses all of the limitations set forth in
claim 1, including container 510, package closure 501, interface 112 between the
package container and the package closure, and indicia 506 and 508 comprising an
array of visual elements disposed upon adjacent surfaces of package container 510
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Serial No. 14/529,581
and package closure 501, with indicia 506 and 508 comprising an image-free zone
corresponding to the location of the interface 112. Ans. 3--4.
Appellant contends that the anticipation rejection is deficient because
0 'Keefe does not disclose indicia comprised of an array of visual elements
disposed upon adjacent surfaces of the package container and package closure.
Br. 2. Appellant contends that O'Keefe discloses "a backer board presented in
conjunction with a closure having similar indicia formed as part of the surface of
the closure." Br. 2.
Appellant's argument does not address the rejection as articulated by the
Examiner, which is that the backer board corresponds to the package closure.
Ans. 3. 0 'Keefe discloses that backer board 501 has "drawings of teeth marks
506" and the marks "may be a different color or shading than the rest of the backer
board 501." O'Keefe, column 5, lines 42-44. The disclosure in O'Keefe that
marks 506 are drawings, in combination with the depiction in figure 5 thereof,
supports the finding that O 'Keefe discloses an indicia disposed upon a surface of
closure 501.
It appears that Appellant's argument, in referring to the backer board of
0 'Keefe as distinct from the closure, is that front panel 510 of O 'Keefe
corresponds to the claimed closure and this front panel does not have indicia
meeting the requirements of claim 1. The Examiner finds that imprints 508 on
front panel 510 shown in Figure 5 of O 'Keefe are part of the indicia. Ans. 3. In
contending that there is a distinction between the claim language and the imprints
of O 'Keefe, Appellant characterizes the indicia of O 'Keefe as being "formed as
part of the surface" rather than disposed upon the surface. Br. 2. Although this
characterization may also be accurate, indicia 508 is formed by imprints upon the
surface of panel or closure 510. O'Keefe, column 5, lines 46--48, and Figure 5.
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Serial No. 14/529,581
Appellant's argument appears to be to the effect that the claim language requires
an indicia which is a distinct layer overlying a surface of the closure, but the claim
language is not so limited. The arguments therefore do not apprise us of Examiner
error, and the rejection of claim 1 is sustained.
Claims 4--7 are not argued separately, and therefore fall with claim 1.
Rejection (ii)-claims 1 and 5-7 over Cheng
The Examiner finds that Cheng discloses all of the limitations set forth in
claim 1, including container 10, package closure 20, interface 12 between the
package container and the package closure, and indicia 11 and 21 comprising an
array of visual elements disposed upon adjacent surfaces of package container 10
and package closure 20, indicia 11 and 21 comprising an image-free zone
corresponding to the location of the interface 12. Final Act. 5. The Examiner
finds that the image-free zone is present in the device of Cheng when the package
closure is not connected or when the package closure is not fully connected. Final
Act. 5.
Appellant contends that the anticipation rejection is deficient because Cheng
does not disclose an image free portion of the indicia corresponding to the location
of the interface. Br. 2.
Appellant has the better position. Claim 1 requires a packaged consumer
product having an image-free zone at the interface. When the device of Cheng is
connected such that container 10 and closure 20 form an interface, as shown in
figure 1, the image is continuous across the interface. The Examiner does not
provide an interpretation of the term "interface" that would support a finding that
the device of Cheng has an interface when the closure is not connected or not fully
connected. The Examiner also does not provide any explanation as to how or why
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Serial No. 14/529,581
the device of Cheng constitutes a packaged consumer product when the closure is
not connected or not fully connected. The rejection of claim 1 over Cheng is
therefore not sustained.
The rejections of claims 5-7 are deficient for the same reasons discussed
above with respect to claim 1, and these rejections are therefore not sustained.
DECISION
We affirm the rejections of claims 1 and 4--7 over O'Keefe.
We reverse the rejections of claims 1 and 5-7 over Cheng.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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