Ex Parte Budz et al

Patent Trial and Appeal Board

Aug 15, 2013

10366120 (P.T.A.B. Aug. 15, 2013)

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.
10/366,120 02/13/2003 Gregory D. Budz 2387/2388/2373
(GP-01-30)
9560
31743 7590 08/16/2013
Georgia-Pacific LLC
133 Peachtree Street NE - GA030-42
ATLANTA, GA 30303
EXAMINER
DEXTER, CLARK F
ART UNIT PAPER NUMBER
3724
MAIL DATE DELIVERY MODE
08/16/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GREGORY D. BUDZ, MICHAEL R. KILGORE,
JONATHAN R. AUMANN and JOHN R. MOODY
____________

Appeal 2010-005147
Application 10/366,120
Technology Center 3700
____________

Before JAMES P. CALVE, ANNETTE R. REIMERS and
SCOTT A. DANIELS, Administrative Patent Judges.

REIMERS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-005147
Application 10/366,120

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STATEMENT OF THE CASE
Gregory D. Budz et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner’s decision to reject claims 1, 11, 14-22, 44-48 and 50-52.
Claims 2-10, 12, 13, 23-43 and 49 have been withdrawn. We have
jurisdiction under 35 U.S.C. § 6(b). We REVERSE.
THE INVENTION
Appellants’ invention relates to “paper towel dispensers.” Spec. 1, l.
13; figs. 1-2. Claims 1, 11, 44, 50, 51 and 52 are independent.
Claim 44 is illustrative of the subject matter on appeal and is
reproduced below:
44. A dispenser for dispensing a continuous web of
sheet material from a roll, the dispenser comprising:
a housing;
supports for supporting at least one roll of sheet
material within the housing;
a feed roller for dispensing a length of sheet
material from the roll to the user;
a drive gear to rotate the feed roller;
a generally vertical press bar, the press bar
including a support member with a gear rack as well as a
vertically oriented handle having a length greater than its
width projecting forwardly from the housing of the
dispenser, said handle being mounted with its length
extending vertically with respect to the dispenser and
being pivotally mounted at a pivot point for swinging
about a pivot axis extending through an upper end of the
press bar, the press bar being pushed generally into the
housing to dispense a length of sheet material, the press
bar being connected to a spring to normally bias the press
bar to a rest position, the gear rack of the support
member of the press bar being positioned, configured and
dimensioned to rotate the drive gear as the press bar
swings about the pivot axis; and
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Application 10/366,120

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wherein the press bar has a top and a bottom
separated by a distance and the rack is disposed more
than about 65% of that distance from the top of the press
bar toward the bottom of the press bar; and
wherein the press bar and vertically mounted press
bar handle are mounted and configured such that the
vertically oriented press bar handle defines a forwardly
projecting substantially vertical plane of rotation with the
pivot point upon rotation of the press bar thereabout, the
rack, pinion and vertically mounted press bar handle
remaining generally in said forwardly projecting
substantially vertical plane of rotation upon inward and
outward rotation of the press bar;
and wherein further the vertically oriented press
bar handle and vertically oriented press bar are mounted
and configured such that the upper portion of the press
bar handle is in vertical proximity with the pivot point
and the lower portion of the press bar handle is in vertical
proximity with the rack so that the force required for
operation of the dispenser is generally horizontal, lying
within the forwardly projecting substantially vertical
plane of rotation.

THE EVIDENCE
The Examiner relies on the following references in rejecting the
appealed claims:
Tucker US 3,606,125 Sep. 20. 1971
Hedge US 4,165,138 Aug. 21, 1979
Perrin US 4,260,117 Apr. 7, 1981
Morand1 US 4,846,412 Jul. 11, 1989
Morand2 US 5,979,822 Nov. 9, 1999

Appellants rely on the Declaration under 37 C.F.R. § 1.132 of
Gregory D. Budz, filed Feb. 25, 2005 (hereafter the “Budz
Declaration”) as evidence of non-obviousness.3

1 Hereafter “Morand ‘412”.
2 Hereafter “Morand ‘822”.
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THE REJECTIONS
The following rejections are before us for review:
1. Claims 44, 45 and 50 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Morand ‘822 or, in the alternative, under 35 U.S.C. §
103(a) as obvious over Morand ‘822.
2. Claims 1, 11, 18, 46 and 52 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Morand ‘822.
3. Claims 47, 48 and 51 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Morand ‘822 and Hedge.4
4. Claims 14-17 and 19-22 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Morand ‘822, Perrin, Morand ‘412, Tucker
and Hedge.5
ANALYSIS
Rejection 1 - Claims 44, 45 and 50
Each of independent claims 44 and 50 recite, “the vertically oriented
press bar handle and vertically oriented press bar are mounted and
configured such that the upper portion of the press bar handle is in vertical

3 The Declarant, Gregory D. Budz, is also a co-inventor in the instant
application.
4 We note that Appellants contend that the Examiner entered new grounds of
rejection against claims 47, 48 and 51. Reply Br. 8-10. If Appellants had
wished to pursue this contention, the proper response would have been a
timely petition. As such, this matter is not within our jurisdiction.
5 We note that Appellants contend that the Examiner entered new grounds of
rejection against claims 14-17 and 19-22. Reply Br. 10-14. If Appellants
had wished to pursue this contention, the proper response would have been a
timely petition. As such, this matter is not within our jurisdiction.

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proximity with the pivot point and the lower portion of the press bar handle
is in vertical proximity with the rack.” App. Br., Clms. App’x.
The Examiner found that Morand ‘822 discloses
wherein further the vertically oriented press bar
handle and vertically oriented press bar are
mounted and configured such that the upper
portion of the press bar handle is in vertical
proximity with the pivot point (e.g., relative to
lower portions of the press bar handle) and the
lower portion of the press bar handle is in vertical
proximity with the rack (e.g., relative to the pivot
portion of the press bar). . . .
Ans. 30; see also Morand ‘822, fig. 9. The Examiner further
reasoned that
[t]he recitation “vertical proximity” has been
interpreted to mean that the recited structures are
in proximity to one another or “near” each other in
a vertical direction. It is emphasized that
“proximity” is considered to be a relative term and
that no reference point has been recited or
otherwise established in the claims (i.e., in
proximity relative to what?). Thus, because the
upper portion of the press bar handle is closer to
the pivot point as measured in a vertical direction
than other portions of the claimed invention (e.g.,
the lower portion of the press bar handle), this
limitation is met by Morand ‘822. Similarly,
because the lower portion of the press bar handle is
closer to the rack as measured in a vertical
direction than other portions of the claimed
invention (e.g., the pivot portion of the press bar),
this limitation is met by Morand ‘822.
Id.
Appellants argue that “[t]he pivot point 72 of Morand [‘822] is not in
vertical proximity with the upper portion of press bar handle 70, nor is the
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gear rack of Morand [‘822] in vertical proximity with the lower portion of
press bar handle 70.” App. Br. 26; Reply Br. 6. Appellants further argue
that
[b]ecause there is a distance between the upper
portion of the of the [sic] push lever and the pivot
point of Morand [‘822], it is not possible for the
push lever of Morand [‘822] to meet the claim
recitation that the upper handle is in proximity
with the pivot point of the push bar of the present
invention.
App. Br. 26; Reply Br. 6-7.
We recognize that claims are to be interpreted in light of the
Specification, and we further recognize that Appellants’ Specification does
not use the words “vertical proximity”6 to describe the invention. Rather,
the Specification describes “[a] vertically oriented press bar assembly 52.”
Spec. 12, l. 20. The Specification further describes
[a]s used herein the term “lower portion” of the
press bar assembly [52] refers to the fact that rack
58 is located toward the lower extremity of the
press bar assembly [52] as shown in the drawing.
That is to say, the rack is vertically more than
halfway toward the bottom of the press bar
assembly 52 and preferably more than about 65%
of the distance from top 66 to bottom 68 of the
press bar towards its lower portion in order to
maximize mechanical advantage . . . Member 72
may include a plurality of tabs 74, 76, for example,
to receive a press bar handle 78.

6 An ordinary and customary meaning of the term “proximity” is “the quality
or state of being proximate : CLOSENESS” MERRIAM WEBSTER’S
COLLEGIATE DICTIONARY (11th ed. 2005).
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Spec. 13, ll. 2-10; fig. 4. In addition, the vertical proximity recited in claims
44 and 50 is depicted in Figure 2, where it is shown that the upper portion of
the vertically oriented press bar handle 78 is proximate (close) to the pivot
point 80 and the lower portion of the vertically oriented press bar handle 78
is proximate (close) to the rack 58.
Based on Appellants’ disclosure and the ordinary and customary
meaning of vertical and proximity, we agree with Appellants that Morand
‘822 fails to disclose that the upper portion of the vertically oriented press
bar handle 70 is proximate (close) to the pivot point 72. See App. Br. 26;
Reply Br. 6-7. Further, upon review of Figure 9 of Morand ‘822, we note
that both the upper portion of the vertically oriented press bar handle 70 and
the lower portion of the vertically oriented press bar handle 70 are proximate
(close) to the rack 76. The upper portion of the press bar handle 70 is closer
to the rack 76 in a vertical direction than the bottom portion of the press bar
handle 70. As such, we do not agree that the lower portion of the press bar
handle 70 of Morand ‘822 is closer to the rack 76 in a vertical direction than
other portions, as proposed by the Examiner. Hence, the Examiner has
failed to establish by a preponderance of the evidence that Morand ‘822
teaches or suggests that the upper portion of the press bar handle is in
vertical proximity with the pivot point and the lower portion of the press bar
handle is in vertical proximity with the rack. Accordingly, the rejection of
independent claim 44 and its dependent claim 45 and independent claim 50
as anticipated by or, in the alternative, as obvious over Morand ‘822 cannot
be sustained.
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Rejections 2-4
Similar to independent claims 44 and 50, each of independent claims
1, 11, 51 and 52 recite, “the upper portion of the press bar handle is in
vertical proximity with the pivot point and the lower portion of the press bar
handle is in vertical proximity with the rack.” See App. Br., Clms. App’x;
see also App. Br. 30, Reply Br. 8. The Examiner relied on Morand ‘822 to
disclose these features with the same findings as claims 44 and 50. See Ans.
11, 14, 17, 23, 29 and 30. For the same reasons as set forth above with
respect to claims 44 and 50, the Examiner has not established by a
preponderance of the evidence that Morand ‘822 discloses or renders
obvious these features in independent claims 1, 11, 51 and 52. The addition
of Perrin, Morand ‘412, Tucker and Hedge does not remedy the deficiencies
of Morand ‘822 as described above. Accordingly, we shall also reverse
Rejections 2-4.
DECISION
We REVERSE the decision of the Examiner as to claims 1, 11, 14-22,
44-48 and 50-52.

REVERSED

mls