Ex Parte Broad

Patent Trial and Appeal Board

Oct 16, 2017

12851569 (P.T.A.B. Oct. 16, 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.
12/851,569 08/06/2010 Gavin J. Broad 11832 1984
27752 7590 10/18/2017
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
MAZUMDAR, SONYA
ART UNIT PAPER NUMBER
1745
NOTIFICATION DATE DELIVERY MODE
10/18/2017 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):
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 GAVIN J. BROAD
Appeal 2017/000425
Application 12/851,569
Technology Center 1700
Before TERRY J. OWENS, KAREN M. HASTINGS, and
JANE E. INGLESE, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1—11. We have jurisdiction under 35 U.S.C. § 6(b).
The Invention
The Appellant claims an apparatus and method for applying a label to
a surface. Claim 1 is illustrative:
1. An apparatus for applying a label to a non-ruled target
surface, the apparatus comprising:
a. a label supply element, the label supply element
comprising a peel tip disposed adjacent to a carrier film path
and a label path diverging from the carrier film path at the peel
tip;
b. an array of label conformation pallets constrained to
circumnavigate a pallet path, at least a portion of the pallet path
Appeal 2017/000425
Application 12/851,569
disposed adjacent to the label path, each pallet comprising a
shell defining a cavity associated with a predefined shape of a
non-ruled surface of a target object and having a perimeter and
a perforated flexible membrane occluding the cavity along the
perimeter;
c. a pressure source connected to the cavity of each
pallet;
d. an array of target-object presentation stations adapted
to hold individual target objects and constrained to
circumnavigate a target-object path, a portion of the target-
object path disposed adjacent to the pallet path;
wherein each target object comprises a non-ruled surface
having a pre-defmed shape.
The References
US 3,938,698 Feb. 17, 1976
US 5,904,804 May 18, 1999
US 6,347,657 B1 Feb. 19,2002
US 2003/0127193 A1 July 10, 2003
US 6,793,755 B2 Sep. 21,2004
The Rejections
The claims stand rejected as follows: claims 1—11 under
35 U.S.C. § 112, second paragraph, as being indefinite for failing to
particularly point out and distinctly claim the subject matter which the
Appellant regards as the invention, claims 9 and 11 under
35 U.S.C. § 102(b) over McDavid, claims 1—3 and 5—8 under
35 U.S.C. § 103 over McDavid in view of Kouda, Schaupp and Bright,
claim 4 under 35 U.S.C. § 103 over McDavid in view of Kouda, Schaupp,
Bright and Hill and claim 10 under 35 U.S.C. § 103 over McDavid in view
of Bright.
McDavid
Kouda
Bright
Hill
Schaupp
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Appeal 2017/000425
Application 12/851,569
OPINION
We affirm the rejection under 35U.S.C. § 112, second paragraph and
reverse the rejections under 35 U.S.C. §§ 102(b) and 103.
Rejection under 35 U.S.C. § 112, second paragraph
“[T]he indefiniteness inquiry asks whether the claims ‘circumscribe a
particular area with a reasonable degree of precision and particularity.’”
Marley Mouldings Ltd. v. Mikron Industries Inc., 417 F.3d 1356, 1359 (Fed.
Cir. 2005), quoting In re Moore, 439 F.2d 1232, 1235 (CCPA 1971).
The Examiner concludes the Appellant’s claim term “non-ruled” is
indefinite because “[b]y appellant’s definition a ruled surface is defined as a
surface through every point of which there is a line that lies in the surface”
(Ans. 2), so “[ejvery known surface would thus be a ruled surface, since a
straight, bent or curved line must lie in every point of all surfaces” (id.).
The Appellant defines “non-ruled” as follows (Spec. 2:24—28):
As used herein, a ruled surface is defined as a surface
through every point of which there is a line that lies in the
surface. A developable surface is defined as a surface which
may be flattened into a plane without distortion or which may
be developed out of a plane without distorting the plane. A
non-ruled surface is one for which these definitions are not true,
that is, a surface which is neither ruled nor developable.
The Appellant states that “Applicant is unaware of a geometric definition of
Tine’ which includes bent and curved structures or elements. Appellant has
provided a definition of the term. The rejection should be reconsidered and
overturned” (Br. 3).
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Appeal 2017/000425
Application 12/851,569
Merriam Webster’s Collegiate Dictionary1 defines “line” as “a
straight or curved geometric element that is generated by a moving point and
that has extension only along a path of the point: CURVE”. Thus, we are
not persuaded of reversible error in the rejection.
Rejection under 35 U.S.C. § 102(b)
“Anticipation requires that every limitation of the claim in issue be
disclosed, either expressly or under principles of inherency, in a single prior
art reference.” Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868
F.2d 1251, 1255-56 (Fed. Cir. 1989).
We need address only independent claim 9 (claim 11 depends from
claim 9). That claim requires “conforming a portion of the pallet membrane
and label to a portion of the non-ruled surface of the cavity wall”.
McDavid discloses “an applicator for transferring labels from both
sides of a single carrier strip to streams of product items on a continuous
basis” (col. 1,11. 7—9). The applicator includes a drum (46) (which the
Examiner relies upon as corresponding to the Appellant’s label pallet
(Ans. 3)) having a recess (68) (which the Examiner relies upon as
corresponding to the Appellant’s label pallet’s cavity (id.)) and comprising a
hollow cylindrical sleeve (50) (which the Examiner relies upon as
corresponding to the Appellant’s pallet membrane (id.)) (col. 3,11. 22—63;
col. 4,11. 20-32; Figs. 1-3).
The Examiner finds that McDavid discloses “conforming a portion of
the pallet membrane and label to a portion of the non-ruled surface of the
cavity wall” (Ans. 3) and “McDavid et al. teach transferring labels onto a
1 Merriam-Webster 11th ed. 2003, p. 723.
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Appeal 2017/000425
Application 12/851,569
drum assembly (i.e. pallet) covered with a hollow cylindrical sleeve (50) (i.e.
a membrane), which retains the labels by vacuum, which changes
conformation with regard to the cavity (68)” (Ans. 8).
The Examiner does not point to any disclosure in McDavid which
indicates that the hollow cylindrical sleeve (50) is conformable to the surface
of the recess (68). The Examiner, therefore, has not established a prima
facie case of anticipation of the method claimed in the Appellant’s claim 9
(or its dependent claim 11) by showing that McDavid discloses, expressly or
inherently, each of the claim’s limitations.
Rejections under 35 U.S.C. § 103
We need address only claim l.2 That claim requires a label
conformation pallet cavity occluded along its perimeter by a perforated
flexible membrane. To meet that claim requirement the Examiner relies
upon the combined disclosures of McDavid and Bright (Ans. 5).
Bright discloses “a lightweight vacuum drum for picking-up, holding,
transporting and positioning label segments for application to a work piece”
(col. 1,11. 62—64). The drum has a polymeric core (14) with a polymeric
cylindrical flexible side wall (20) having secured to its outer surface a rubber
or plastic vacuum drum pad (24) (col. 2,11. 12—13, 32—33; col. 3,11. 62—63;
Fig. 2). “[S]ide wall 20 alone or taken in combination with pad 24 is
flexible and may be designed to instantaneously conform generally to the
contours of the work pieces at the port of engagement therewith during
2 The Examiner does not rely upon Hill for any disclosure that remedies the
deficiency in McDavid, Kouda, Schaupp and Bright as to the limitations in
claim 1 from which claim 4 depends (Ans. 6) or rely upon Bright for any
disclosure that remedies the deficiency in McDavid as to the limitations in
claim 9 from which claim 10 depends (Ans. 7).
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Application 12/851,569
operation” (col. 4,11. 6—9). The flexible side wall (20) provides “flexibility
in accommodating the shape, size, and nature of work pieces to be labeled”
(col. 6,11. 56-58).
The Examiner concludes that “it would have been obvious for one
having ordinary skill in the art to use a rubber or plastic outer pad in the
apparatus of McDavid to provide flexibility in accommodating the shape,
size, and nature of the work pieces to be labeled (column 6, lines 8-14
and 56-58)” (Ans. 5).
Setting forth a prima facie case of obviousness requires establishing
that the applied prior art would have provided one of ordinary skill in the art
with an apparent reason to modify the prior art to arrive at the claimed
invention. See KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Bright discloses that “side wall 20 alone or taken in combination with
pad 24 is flexible and may be designed to instantaneously conform generally
to the contours of the work pieces at the port of engagement therewith
during operation” (col. 4,11. 6—9) and “[t]he flexible side walls of the present
invention also provide flexibility in accommodating the shape, size, and
nature of work pieces to be labeled” (col. 6,11. 56—58). The conformation
benefit, therefore, is provided by the flexibility of the side wall (20) to which
the pad (24) is attached. The Examiner does not establish that Bright would
have provided one of ordinary skill in the art with an apparent reason to
attach the pad (24) to McDavid’s hollow cylindrical sleeve (50) which
appears to be inflexible. Hence, the Examiner has not established a prima
facie case of obviousness of the Appellant’s claimed apparatus.
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Application 12/851,569
DECISION/ORDER
The rejection of claims 1—11 under 35 U.S.C. § 112, second paragraph
is affirmed. The rejections of claims 9 and 11 under 35 U.S.C. § 102(b) over
McDavid, claims 1—3 and 5—8 under 35 U.S.C. § 103 over McDavid in view
of Kouda, Schaupp and Bright, claim 4 under 35 U.S.C. § 103 over
McDavid in view of Kouda, Schaupp, Bright and Hill and claim 10 under
35 U.S.C. § 103 over McDavid in view of Bright are reversed.
It is ordered that the Examiner’s decision 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).
AFFIRMED
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