Ex Parte Baranowski et al

Patent Trial and Appeal Board

Apr 4, 2017

13607581 (P.T.A.B. Apr. 4, 2017)

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.
13/607,581 09/07/2012 Brad P. Baranowski J-5834 3178
28165 7590 04/06/2017
S.C. JOHNSON & SON, INC.
1525 HOWE STREET
RACINE, WI53403-2236
EXAMINER
DURAND, PAUL R
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
04/06/2017 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):
F074168@scj.com
selechne @ scj. com
mjzolnow @ scj .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRAD P. BARANOWSKI, DAVID C. BELONGIA,
SCOTT D. WALTER, and APARNA UNNIKRISHNAN
Appeal 2015-003036
Application 13/607,581
Technology Center 3700
Before MICHAEL L. WOODS, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
WOODS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Brad P. Baranowski et al. (“Appellants”) appeal under 35 U.S.C.
§ 134 from the Examiner’s decision rejecting claims 1—18 and 20. Appeal
Br. 2. We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
SUMMARY OF THE DECISION
We AFFIRM-IN-PART, but designate our affirmance of the rejection
of claims 13—16 as a NEW GROUND OF REJECTION pursuant to our
authority under 37 C.F.R. § 41.50(b).
Appeal 2015-003036
Application 13/607,581
CLAIMED SUBJECT MATTER
Appellants’ invention relates to a product dispensing system with
“visual communication elements defined by one or more surface variations.”
Spec. 14. Claims 1,13, and 17 are the independent claims, and we
reproduce those claims below, with emphases added to particular limitations
at issue in this appeal.
1. A product dispensing system, comprising:
a housing having a top wall and a sidewall
with at least one orifice and at least one recessed
protrusion in alignment with the at least one orifice,
wherein an exterior surface of the at least one
recessed protrusion provides a visual contrast in
color, texture, or surface finish that differs from that
of an exterior surface of the sidewall adjacent the
orifice.
13. A product dispensing system,
comprising:
a housing having a top wall and a sidewall
with a product spray opening and at least one
surface variation on a first side thereof; and
a manual actuation button extending through
the sidewall on a second, different side thereof
17. A product dispensing system,
comprising:
a housing having a sidewall with a surface
variation formed at least partially thereby,
which further forms a first communication
element; and
a second communication clement formed by
a dispensing opening,
wherein the first and second communication
elements form similarly shaped parts of a pattern.
Appeal Br. 16—19 (Claims App.).
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THE REJECTIONS1
I. Claims 1—3 and 13—15 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Gurrisi (US 2007/0241134 Al, published Oct. 18, 2007).
Final Act. 3.
II. Claim 17 stands rejected under 35 U.S.C. § 102(b) as anticipated
by Paolazzi (US D604,824 S, issued Nov. 24, 2009). Final Act. 4.
III. Claims 17, 18, and 20 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Carpenter (US 2007/0199952 Al, published Aug. 30, 2007).
Final Act. 4—5.
IV. Claims 1—12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over FR493 (FR 1,303,493, published Sept. 14, 1962) and
FR703 (FR 1,049,703, published Dec. 31, 1953). Final Act. 5-6.
V. Claims 5 and 16 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Gurrisi. Final Act. 8.
1 In the Answer, the Examiner withdrew a rejection of claims 17, 18, and 20
as being indefinite under 35 U.S.C. § 112, second paragraph. Ans. 7—8
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Application 13/607,581
ANALYSIS
Rejection I: Claims 1—3 and 13—15
as Anticipated by Gurrisi
Claims 1—3
Appellants contest the rejection of claims 1—3 collectively. See
Appeal Br. 11. In accordance with 37 C.F.R. § 41.37(c)(l)(iv), we select
claim 1 as the representative claim to decide the appeal of the rejection, with
claims 2 and 3 standing or falling with claim 1.
In rejecting claim 1, the Examiner finds that Figures 1 and 2A of
Gurrisi disclose the claimed product dispensing system. Final Act. 3. To
illustrate this finding, we reproduce Figures 1, 2 A, and 3 of Gurrisi, below:
FIG. 1 F!G- 2A FIG. 3
Gurrisi’s Figure 1, as found by the Examiner, discloses the claimed
dispensing system comprising, inter alia, “housing” 12 and sidewall 15.
Final Act. 3. Gurrisi’s Figure 2A—as found by the Examiner—discloses
sidewall 15 as having at least one orifice 29 and at least one recessed
protrusion 24. Id. Gurrisi’s Figure 3 is a side view of the dispenser of
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Figure 1. Gurrisi ]Hf 10—13. The Examiner explains that the “intersection of
front and rear portion of 24 creates recess and there is a recess between 24
and opening 29.” Final Act. 3.
In the Answer, the Examiner further cites to Figure 9 of Gurrisi,
which we reproduce below (Ans. 10):
Gurrisi’s Figure 9, as found by the Examiner, clearly shows “a gap
between 24 and 12 created by a tapered portion along the outer edge of 24,”
which satisfies the claimed recess. Id.
In contesting the rejection of claim 1, Appellants argue that Gurrisi
does not disclose the claimed “recessed protrusion,” as Gurrisi’s element 24
is not recessed with the outer surface of housing 12. Appeal Br. 11; see
Gurrisi Fig. 3 (depicting top surface of “protrusion” 24 as being flush with
outer surface of “housing” 12). In support of this argument, Appellants cite
to the Specification, which describes, “[sjurface variations include . . . height
differences between the portions, such as one portion being recessed.” Id.
(citing Spec. 154) (emphasis omitted); see also Reply Br. 3^4 (arguing that
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Application 13/607,581
the Examiner’s interpretation is inconsistent with the Specification (internal
citation omitted)).
Appellants’ argument is not persuasive. Although we interpret claims
in light of the specification, we do not read limitations from the specification
into the claims. In re Van Geuns, 988 F.2d 1181 (Fed. Cir. 1993).
In the present case, Appellants’ argument is premised on an
interpretation that the claimed “recessed protrusion” requires that the top
surface of the “protrusion” be below the top surface of the sidewall. See
Appeal Br. 11. The Examiner, on the other hand, finds that Gurrisi’s
“protrusion” 24 is recessed as a gap exists between the outer edge of
“protrusion” 24 and “housing” 12. Ans. 10. Appellants’argument proposes
to add disclosed limitations not otherwise expressly recited. In the absence
of an express recitation requiring that the surface of the claimed “recessed
protrusion” have a different height than the surface of the claimed
“housing,” we do not interpret the claim so narrowly and as requiring this
limitation.
Accordingly, we adopt the Examiner’s reasoning and findings and
sustain the rejection of claim 1, and claims 2 and 3, which fall with claim 1,
under 35 U.S.C. § 102(b) as anticipated by Gurrisi.
Claims 13—15
Appellants contest the rejection of claims 13—15 collectively. See
Appeal Br. 11—12. Accordingly, we select claim 13 as the representative
claim to decide the appeal of the rejection, with claims 14 and 15 standing or
falling with claim 13.
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In rejecting claim 13, the Examiner finds that Figure 1 of Gurrisi
discloses the claimed product dispensing system. To illustrate this finding,
we reproduce Gurrisi’s Figure 1, below:
Gurrisi’s Figure 1, as found by the Examiner, discloses the claimed
“surface variation” 24 on a “first side thereof,” and the claimed “manual
actuation button” 22 on a “second side thereof.” Final Act. 3.
In contesting the rejection, Appellants provide an annotated copy of
Gurrisi’s Figure 1, which we reproduce below:
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Application 13/607,581
FIG. 1
According to Appellants, and as shown by the vertical line annotation
in the above-Figure, Gurrisi’s “manual actuation button” 22 is not aligned
with “surface variation” 24, and because of this, Gurrisi does not disclose
the claimed “manual actuation button extending through the sidewall on a
second, different, side” than the “surface variation’s” 24 side. See Appeal
Br. 11-12.
In response to Appellants’ argument, the Examiner cites to the
location of certain diamond-shaped formations from Gurrisi’s Figure 9—
reproduced above—to support a contrary finding that “Figure 1 shows that.
. . the left edge of 22 would not be aligned with element 24.” Ans. 10.
We do not agree with the Examiner’s finding that Gurrisi’s Figure 1
shows that the left edge of “manual actuation button” 22 is not aligned with
“surface variation” 24. See id.
Although we do not agree with this particular finding, however, we do
not interpret the claim so narrowly as requiring the claimed “surface
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Application 13/607,581
variation” to avoid, in its entirety, any alignment with the “manual actuation
button,” as premised by the Examiner’s finding. Id.
Claim 13 specifically recites, “a product spray opening and at least
one surface variation on a first side thereof; and a manual actuation button
extending through the sidewall on a second, different side thereof.” Appeal
Br. 18 (Claims App.). A broad, but reasonable, interpretation of this claim
requires simply a first side with a product spray opening and a surface
variation, and a second, different, side with a manual actuation button. Id.
The claim does not require that the surface variation occupy only the first
side, thereby prohibiting any portion of the surface variation from also
occupying the second side, as the Examiner apparently interprets. See Ans.
10. Accordingly, the claimed limitation may be satisfied by a surface
variation that occupies both the first and second side of the sidewall.
Based on this reasonably broad claim interpretation, we find that
Gurrisi’s Figure 1 embodiment discloses the claimed structure. To illustrate
these findings, we reproduce our annotated version of Gurrisi’s Figure 1,
below:
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Application 13/607,581
In particular, we find that Figure 1 of Gurrisi discloses the claimed
product dispensing system 18 comprising housing 12, having top wall
(adjacent 20), sidewall 15 with a product spray opening 14, and at least one
surface variation 24. We also find that this Figure discloses a manual
actuation button 22 that extends through the sidewall on a second, different
side thereof. The vertical line demarcates the first and second sides. We
further find that Gurrisi’s transparent viewing element 24 can reasonably be
construed as satisfying the claimed “surface variation,” as transparent
element 24 contrasts with the surface of sidewall 15 that is not transparent.
See Gurrisi 133 (“transparent element [24] may occupy as little as 5% of the
housing sidewall. . . [and] typically it will be a separate piece affixed or
mounted to a similarly dimensioned cut-out [29]'”); see also Spec. 1 54 (“A
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Application 13/607,581
surface variation, at a minimum, is one portion of a surface . . . [that]
provide[s] a contrast between the surfaces.”).
For the foregoing reasons, we adopt the Examiner’s reasoning and
findings and sustain the rejection of claim 13, and claims 14 and 15, which
fall with claim 13. Because our analysis relies upon facts and reasoning that
the Examiner did not use, however, we designate the affirmance of the
rejection as a new ground of rejection pursuant to 37 C.F.R. § 41.50(b).
Rejection II: Claim 17
as Anticipated by Paolazzi
Claim 17 recites, inter alia, first and second communication elements
that “form similarly shaped parts of a pattern.” Appeal Br. 19 (Claims
App.).
To satisfy this claimed limitation, the Examiner cites to Figure 1 of
Paolazzi, which we reproduce below:
FIG. 1
Poalazzi’s Figure 1, as found by the Examiner, discloses a “first
communication element” that “looks like a plant” and a “second
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Application 13/607,581
communication element [that is] formed by a dispensing opening ... [as an]
orifice in center of front wall.” Final Act. 4.
Appellants argue that the Examiner errs in relying on dissimilarly
shaped features as satisfying the claimed “similarly shaped parts of a
pattern.” Appeal Br. 8.
Appellants’ argument is persuasive. We disagree with the Examiner’s
finding that Paolazzi’s dispensing opening and Paolazzi’s elements that
“look like a plant” together form “similarly shaped parts of a pattern,” as
required by the claim. In particular, we do not see how Paolazzi’s oval­
shaped opening is “similarly shaped” to the leaf-like elements depicted in
Paolazzi’s Figure 1, and we disagree with a finding that together these
somehow form a pattern.
For the foregoing reasons, we reverse the rejection of claim 17 as
anticipated by Paolazzi.
Rejection III: Claims 17, 18, and 20
as Anticipated by Carpenter
Claims 18 and 20 depend from claim 17, which recites, as discussed
above, first and second communication elements that “form similarly shaped
parts of a pattern.” Appeal Br. 19 (Claims App.).
In rejecting these claims, the Examiner cites to Figures 24 and 25 of
Carpenter, which we reproduce below:
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Application 13/607,581
FIG. 24 FIG. 25
The above figures, as found by the Examiner, discloses the “first
communication element” as including a “surface variation” formed by
elements 728, 736. See Final Act. 4—5; see also Ans. 9. The Examiner also
finds that these figures depict the claimed “second communication element”
as formed by “dispensing opening” 900. Final Act. 5. The Examiner
explains that “all of the surface variations are have [sic] an elongated or oval
shape and form an aesthetically pleasing pattern of a tulip as discussed” in
Carpenter’s paragraph 119. Ans. 10.
In contesting the rejection, Appellants argue that the Examiner erred
because Carpenter’s “features together form no discernible pattern.” Final
Act. 10-11.
Appellants’ argument is persuasive.
We disagree with the Examiner’s findings that Carpenter’s “U-shaped
groove” 900 (Carpenter 1120), which the Examiner finds satisfies the
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claimed “second communication element” (Final Act. 5), and Carpenter’s
elements 728, 736, which the Examiner finds satisfies the claimed “first
communication elements” (id. at 4), together “form similarly shaped parts of
a pattern” (see Ans. 9-10). We also disagree with the Examiner’s findings
that each of these “surface variations” are “similarly shaped,” as they are
each either “elongated or oval shape.” Id. at 10. We also disagree with the
Examiner’s finding that together these “surface variations . . . form an
aesthetically pleasing pattern of a tulip as discussed in Paragraph [0119] of
Carpenter.” Id. Notably, the cited portion of Carpenter merely describes
cover 700 as being “tulip shaped,” not that groove 900, upper end 728, and
second portion 736 together form a “pattern of a tulip.” Compare Carpenter
1119, with Ans. 10.
For the foregoing reasons, we reverse the rejection of claims 17, 18,
and 20 as anticipated by Carpenter.
Rejection IV: Claims 1—12
as Unpatentable overFR493 andFR703
Claims 1—5, 7, and 9—12
Appellants contest the rejection of claims 1—5, 7, and 9—12
collectively. See Appeal Br. 12—13. Accordingly, we select claim 1 as the
representative claim to decide the appeal of the rejection, with claims 2—5, 7,
and 9—12 standing or falling with claim 1.
In rejecting claim 1, the Examiner relies on Figures 1 and 4 of FR493,
which we reproduce below (Final Act. 5—6):
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^2 \\
$ /
The above figures show—according to the Examiner—a product
dispensing system comprising, inter alia, a sidewall having “orifice” 2 and
at least one “protrusion” 3 in alignment with “orifice” 2. Id. The Examiner
concedes, however, that FR493 “fails to show that the protrusion is
recessed.” Id. at 6.
To satisfy this missing limitation, the Examiner relies on Figures 9
and 10 of FR703, which we reproduce below:
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Application 13/607,581
The above figures show—according to the Examiner—sidewall 14
having recessed protrusion 20 in an orifice. Final Act. 6.
In combining FR493 with FR703, the Examiner reasons that
It would have been obvious to one having
ordinary skill in the art at the time the invention was
made to have manufactured some or all of the
protrusions of FR493 to be recessed as shown by
FR703 to achieve different textures and visual
effects resulting in a desired design.
Id.
In contesting the rejection, Appellants argue that the combination
would not have been obvious, as FR703’s ‘“recessed protrusion’ is disposed
beneath the decorated top surface, and in use, would not be seen.” Appeal
Br. 12.
Appellants’ argument is not persuasive, as it is premised on a
misreading ofFR703. Contrary to Appellants’ argument, FR703’s “recessed
protrusion” can be seen. Ans. 10 (explaining that although ring 20 is shown
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as recessed from the lower surface, this surface was meant to and can be
seen).
Accordingly, we adopt the Examiner’s reasoning and findings and
sustain the rejection of claim 1, and claims 2—5, 7, and 9-12, which fall with
claim 1, under 35 U.S.C. § 103(a) as unpatentable over FR493 and FR703.
Claims 6 and 8
Claims 6 and 8 each depend directly from claim 1 and further recite:
6. ... wherein a plurality of protrusions
extend through a plurality of orifices, and wherein
at least one of the plurality of protrusions has a
geometric shape that differs from another of the
plurality of protrusions.
8. ... wherein a plurality of protrusions
extend through a plurality of orifices, and wherein
at least one of the plurality of protrusions has an
orientation with respect to the sidewall that differs
from another one of the plurality ofprotrusions.
Appeal Br. 17 (Claims App.) (emphases added).
To satisfy these claimed limitations, the Examiner finds that “FR703
shows a plurality of protrusions (20, 21) with different lengths, widths,
shapes and orientations (Fig. 10) in order to achieve desired design.” Final
Act. 7. The Examiner reasons that
It would have been obvious to one having ordinary
skill in the art at the time the invention was made to
have manufactured the system of FR193 with at
least one of the plurality of protrusions having any
of a length and width that differ from another of the
plurality of protrusions, a different shape and a
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different orientation as taught by FR703 as an
obvious design choice to achieve a desired
aesthetically pleasing pattern.
Id.
In contesting the rejection of claims 6 and 8, Appellants argue that
even if reference numeral 20 of FR703 satisfies the claimed “recessed
protrusion,” reference numeral 21 does not, as it is instead flush with the
bottom surface of the disk. See Appeal Br. 13 (citing FR703, Figs. 9, 10).
Appellants’ argument is not persuasive, as the Examiner does not rely
on a finding that reference numeral 21 is a “recessed protrusion.” See Final
Act. 7. To the contrary, the Examiner acknowledges that reference numeral
21 is not recessed (see Ans. 11); the Examiner simply relies on this element
as having a different length, width, shape, and orientation (see id.', see also
Final Act. 7).
Accordingly, we adopt the Examiner’s reasoning and findings and
sustain the rejection of claims 6 and 8 as unpatentable over FR493 and
FR703.
Rejection V: Claims 5 and 6
as Unpatentable over Gurrisi
Claim 5
Claim 5 depends from claim 1 and further recites, “a plurality of
protrusions extend through a plurality of orifices having a complementary
shape.” Appeal Br. 16 (Claims App.).
In rejecting claim 5, the Examiner relies on the findings discussed
supra with respect to Rejection I, claim 1. See Final Act. 8. The Examiner
acknowledges, however, that Gurrisi fails to teach the claimed plurality of
protrusions extending through a plurality of orifices. See id.
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To satisfy this missing limitation, the Examiner reasons:
It would have been obvious to one having ordinary
skill in the art at the time the invention was made to
have manufactured the system of Gurrisi with a
plurality of protrusions as an obvious design choice
to allow for viewing of more markings on the can in
various locations, especially since it has been held
that mere duplication of the working parts of a
device requires only routine skill in the art.
Id. (citing Gurrisi 134, MPEP § 2144.04).
In contesting the rejection, Appellants argue that the Examiner relies
on impermissible hindsight, and that using a plurality of protrusions would
be both undesirable and impractical. Appeal Br. 13.
Appellants’ argument is unpersuasive.
Gurrisi discloses that “the viewing window may be any desired size or
shape, [and] preferably it should be sufficient size and shape to enable the
user to see external markings ... on the canister.” Gurrisi 134. We find
that the cited portion of Gurrisi supports the Examiner’s reasoning that a
person of ordinary skill in the art would have modified Gurrisi to include
multiple windows—which satisfy the claimed “recessed protrusions”—in
order to “allow for viewing of more markings on the can in various
locations.” Final Act. 8.
Accordingly, we adopt the Examiner’s reasoning and findings and
sustain the rejection of claim 5 as unpatentable over Gurrisi.
Claim 16
Claim 16 depends indirectly from claim 13 and, as with claim 5,
further recites, “a plurality of protrusions extend through a plurality of
orifices having a complementary shape.” Appeal Br. 18 (Claims App.).
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In rejecting claim 16, and as with claim 5, the Examiner relies on the
findings discussed supra with respect to Rejection I, claim 13, but
acknowledges that Gurrisi fails to teach the claimed plurality of protrusions
extending through a plurality of orifices. See Final Act. 8. As with claim 5,
the Examiner reasons that it would have been obvious to add a plurality of
protrusions to allow for viewing of more markings. Id.
For the same reasons discussed above with respect to claim 5, we also
adopt the Examiner’s reasoning and findings and sustain the rejection of
claim 16. Because our affirmance of the rejection of independent claim 13
relies upon facts and reasoning that the Examiner did not use, however, we
also designate the affirmance of the rejection of claim 16, depending from
claim 13, as a new ground of rejection pursuant to 37 C.F.R. § 41.50(b).
SUMMARY
We affirm the Examiner’s rejection of claims 1—3 under 35 U.S.C.
§ 102(b) as anticipated by Gurrisi.
We affirm the Examiner’s rejection of claims 13—15 under 35 U.S.C.
§ 102(b) as anticipated by Gurrisi. However, for the reasons discussed
supra, we designate our affirmance of the rejection of claims 13—15 as a new
ground of rejection pursuant to 37 C.F.R. § 41.50(b).
We reverse the Examiner’s rejection of claim 17 under 35 U.S.C.
§ 102(b) as anticipated by Paolazzi.
We reverse the Examiner’s rejection of claims 17, 18, and 20 under 35
U.S.C. § 102(b) as anticipated by Carpenter.
We affirm the Examiner’s rejection of claims 1—12 under 35 U.S.C.
§ 103(a) as unpatentable over FR493 and FR703.
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We affirm the Examiner’s rejection of claim 5 under 35 U.S.C.
§ 103(a) as unpatentable over Gurrisi.
We affirm the Examiner’s rejection of claim 16 under 35 U.S.C.
§ 103(a) as unpatentable over Gurrisi. However, for the reasons discussed
supra, we designate our affirmance of the rejection of claim 16 as a new
ground of rejection pursuant to 37 C.F.R. § 41.50(b).
This decision contains NEW GROUNDS OF REJECTION pursuant
to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] NEW
GROUND OF REJECTION pursuant to this paragraph shall not be
considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence
relating to the claims so rejected, or both, and have the
matter reconsidered by the Examiner, in which event the
proceeding will be remanded to the Examiner ....
(2) Request rehearing. Request that the proceeding
be reheard under § 41.52 by the Board upon the same
record ....
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART; 37 C.F.R, $ 41.50(b)
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