Ex Parte Batchvarova et al

Patent Trial and Appeal Board

Sep 7, 2018

13418561 (P.T.A.B. Sep. 7, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/418,561 03/13/2012
27777 7590 09/11/2018
JOSEPH F. SHIRTZ
JOHNSON & JOHNSON
ONE JOHNSON & JOHNSON PLAZA
NEW BRUNSWICK, NJ 08933-7003
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Nikoleta Batchvarova
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.
JC05048USNP 6455
EXAMINER
OLIVER, BRADLEY S
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
09/11/2018 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):
jnjuspatent@corus.jnj.com
lhowd@its.jnj.com
pairjnj@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NIKOLETA BATCHV AROV A and
EMANUEL PETER MORANO
Appeal2018-001089
Application 13/418,561
Technology Center 3700
Before STEFAN STAICOVICI, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Nikoleta Batchvarova and Emanuel Peter Morano ("Appellants")
appeal under 35 U.S.C. § 134(a) from the Examiner's decision rejecting
claims 1-10. 1 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants submit the real party in interest is Johnson & Johnson
Consumer Inc., a subsidiary of Johnson & Johnson. Br. 2.
Appeal2018-001089
Application 13/418,561
THE CLAIMED SUBJECT MATTER
Appellants' invention relates to packaging and a complementary
applicator for a consumer healthcare product. Spec. ,r 1. Sole independent
claim 1 is reproduced below:
1. A packaging and applicator combination comprising:
a packaging comprising a flexible tube and a closure more
rigid than said tube;
a consumer healthcare product within said tube and
dispensed therefrom upon application of pressure from a user's
fingers to said tube to flex said tube to squeeze out said consumer
healthcare product; and
an applicator having a distal applicator end, and a coupling
element shaped and configured for coupling with said closure;
wherein:
said closure is a stock closure;
said distal applicator end has an applicator element with
an applicator side selected [f]or[2J application of said consumer
healthcare product to a surface, and a user-engaging surface
opposite said applicator side;
said coupling element comprises at least one coupling arm
configured to extend around greater than half the circumference
of said closure to couple said applicator to said closure
independently of features of said closure retaining said applicator
on said closure; and
said coupling arm is shaped and configured to receive at
least a portion of a user's hand to apply said consumer health care
product upon application of pressure from said portion of said
user's hand to said applicator.
2 Claim 1 in the Claims Appendix recites "selected or application." Br. 6
(Claims App.)). However, we understand this to be a typographical error in
that claim 1, at the time the instant appeal was filed, recites "selected for
application." See Appellants' Amendment 2, filed June 29, 2015. We note
that it is not clear whether the Examiner has entered Appellants' Response to
the Examiner's Final Action, filed Nov. 24, 2015 (see Advisory Action,
dated Dec. 8, 2015), which includes the same typographical error noted
above.
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Application 13/418,561
REJECTION
Claims 1-10 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Hall (US 7,815,383 B2, issued Oct. 19, 2010).
DISCUSSION
The Examiner finds that Hall discloses a packaging and applicator
combination substantially as claimed, but does not "disclose that the
packaging is a flexible tube with a stock closure." Non-Final Act. 3. Based
on Hall disclosing that the packaging may be a dentifrice container, the
Examiner takes official notice that a flexible toothpaste tube with a stock
closure is an extremely well-known dentifrice container. Id. at 2-3; see also
Ans. 4 (citing Hall 2:50-51, 4:12-19). The Examiner concludes that it
would have been obvious to use a flexible tube with a stock closure more
rigid than the tube as the packaging in Hall as a matter of selecting a well-
known packaging that is compatible with the applicator of Hall. Non-Final
Act. 3.
Appellants first contend that Hall's container 3 6 is rigid and that Hall
does not disclose "and logically would not" disclose a flexible container,
"since container 36 is meant to be 'releasably secured' to retention means
28." Br. 3. According to Appellants, if Hall's container was flexible, "it
would deform if pressed into the retention means." Id. Appellants assert
that the Examiner's position that one skilled in the art would recognize that a
flexible container would deform, "and therefore attach the Hall clamp to the
closure," is untenable, because "Hall would have said it. Clearly, Hall did
not contemplate the use of a flexible container." Br. 4.
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Application 13/418,561
The Examiner responds that Hall's disclosure of a dentifrice container
"suggests a packaging comprising a flexible tube and a closure more rigid
than said tube as recited in claim 1." Ans. 4.
Appellants' first contention is not persuasive for the following
reasons. Hall discloses that container 36 is "preferably ... an aerosol-type
breath spray canister" (Hall 4: 15-16), but also discloses that container 3 6
may contain a dentrifice such as toothpaste. Id. at 4: 12-13. Appellants do
not dispute that a flexible toothpaste tube with a rigid stock closure is an
extremely well-known container, nor do Appellants dispute that Hall
discloses that container 36 may contain toothpaste. See Br. passim. Further,
Appellants do not provide persuasive arguments or technical reasoning that
using a flexible tube with rigid closure is more than a matter of selecting a
well-known packaging for toothpaste as the Examiner suggests. See Hall
3:24--25. With respect to Appellants' argument that a flexible container
would deform if coupled to Hall's clamping members 28, Figure 3 of Hall
suggests that clamping members 28 secure container 36 to the applicator
near the top of the container 36. Id. at Fig. 3. This suggests, as the
Examiner finds, that one of ordinary skill in the art would attach the
clamping members 28 to the rigid closure at the top of the flexible toothpaste
container not to the flexible container itself as Appellants posit.
Appellants' second contention is that "Hall's retention means 28 is
very different from the claimed coupling element," at least because it is "on
the lower portion 12 of the handle." Br. 4. According to Appellants, Hall
does not suggest using the retention means to attach to the closure of the
container, whereas the claimed coupling element "couples the applicator to
the closure of the packaging specifically." Id.
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Application 13/418,561
In response, the Examiner states that because one of ordinary skill in
the art would understand that attaching a clamp to the deformable tube
would result in the tube deforming, "[t]he person having ordinary skill
would then look to the rigid portion of the toothpaste tube, the closure, and
attach the clamp at that point." Ans. 4. The Examiner notes that "Hall's
silence on this point does not indicate that this is a complex leap that one of
ordinary skill could not make or that Hall did not contemplate." Id. The
Examiner states that "it is proper to take into account not only specific
teachings of the reference but also the inferences which one skilled in the art
would reasonably be expected to draw therefrom." Id.
Appellants' second contention is not persuasive for the following
reasons. Claim 1 recites, "a coupling element shaped and configured for
coupling with said closure." Br. 6. Hall discloses that "[a]t least one
clamping member, receiving receptacle or other retention means 28 may be
provided on the lower portion 12 of the handle for releasable attachment of a
container 36 to the handle." Hall 4:9-12 ( emphases omitted). Hall further
discloses that "[i]t should be understood that any suitable means for
releasably securing the container 36 to the handle may be used, and the
exemplary pair of clamping members 28 illustrated in ... [Figure] 2 are for
exemplary purposes only." Hall 4: 19-22 (emphases omitted). Appellants
do not explain adequately how Hall's pair of clamping members for
releasably securing a container to a handle differ from the claimed coupling
element. That is, Hall's clamping members 28 are arms that are shaped and
configured to couple with container 36. As discussed above, Figure 3 of
Hall shows the clamping members aligned with the top of the container
where the closure of a flexible toothpaste container is located. Appellants,
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Application 13/418,561
thus, do not persuasively rebut the Examiner's finding that "attaching the
Hall clamp to the closure of the toothpaste tube is a simple matter that is
well within the level of ordinary skill." Ans. 5. Further, we agree with the
Examiner that the "location of Hall's clamping members on the lower
portion 12 of the handle has no bearing on which portion of the container is
held within the clamping members." Id.
Appellants' third contention is that the retention means 28 of Hall do
not extend around greater than half the circumference of the closure. Br. 4.
Appellants assert that at least Hall's "Figure 3 shows this claimed feature is
not taught." Id.
The Examiner responds that Hall's Figure 2 shows both arms curving
toward each other, which indicates that the arms extend "more than one half
of a circle." Ans. 5. The Examiner states that arms "that extend less than
halfway around a circumference will not sufficiently hold an object with a
circular cross-section[,] ... the force exerted on the closure would push it
out of the clamping members." Id. The Examiner concludes that "one of
ordinary skill in the art would recognize that the clamping arms of Hall
should extend around greater than half the circumference of the closure in
order to actually retain the closure within the clamping arms" and that such a
configuration "is a matter of basic engineering principles that is well within
the level of ordinary skill in the art." Id.
Appellants' third contention is not persuasive for the following
reasons. Figure 2 of Hall shows curved arms and because an artisan must be
presumed to know something about the art apart from what the references
disclose3, we agree with the Examiner that one of ordinary skill in the art
3 See In re Jacoby, 309 F.2d 513,516 (CCPA 1962).
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Application 13/418,561
would recognize that Hall's curved arms 28 should extend around greater
than half the circumference of the closure in order to reliably retain a
circular closure therein. Ans. 5. Appellants do not adequately explain how
Hall's circular container would be secured by arms 28 without the arms
extending around greater than half the circumference of the container, as the
Examiner suggests. The Examiner's determination that "the clamping arms
of Hall ... extend around greater than half the circumference of the closure
in order to actually retain the closure within the clamping arms" is supported
by a preponderance of the evidence. Ans. 5.
We have reviewed all of Appellants' contentions for the patentability
of claim 1, but we are not apprised of Examiner error. Accordingly, the
Examiner's rejection of claim 1 as unpatentable over Hall is sustained. As
no other substantive arguments are set forth by Appellants, dependent claims
2-10 fall with claim 1.
DECISION
The Examiner's decision to reject claims 1-10 is affirmed.
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)(l )(iv).
AFFIRMED
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