Ex Parte Dobler

Board of Patent Appeals and Interferences

Mar 18, 2011

10233136 (B.P.A.I. Mar. 18, 2011)

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.
10/233,136 08/30/2002 Sven Dobler 7329 8735
7590 03/18/2011
Paul M. Denk
763 South New Ballas Road
St. Louis, MO 63141
EXAMINER
FUBARA, BLESSING M
ART UNIT PAPER NUMBER
1613
MAIL DATE DELIVERY MODE
03/18/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte SVEN DOBLER
__________

Appeal 2010-007814
Application 10/233,136
Technology Center 1600
__________

Before TONI R. SCHEINER, ERIC GRIMES, and MELANIE L.
McCOLLUM, Administrative Patent Judges.

McCOLLUM, Administrative Patent Judge.

DECISION ON APPEAL1
This is an appeal under 35 U.S.C. § 134 involving claims to a
sampler. The Examiner has rejected the claims as anticipated or obvious.
We have jurisdiction under 35 U.S.C. § 6(b). We reverse.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2010-007814
Application 10/233,136

2
STATEMENT OF THE CASE
Claims 5-9, 12, and 18 are pending and on appeal (App. Br. 3). We
will focus on claim 18, which reads as follows:
18. A sampler, for inserting into a magazine or mail piece
comprising:
a bottom ply having an upper surface, a lower surface, and a wall on
said upper surface, said wall defining a well, said bottom ply upper surface
having said wall formed therein and said bottom ply with said wall defining
said well into which a sample is deposited;
a cosmetic sample deposited in said well;
a top ply having an upper surface and a lower surface, said top ply
having a wall formed in the top ply lower surface, the top ply wall forming
closure with the bottom ply wall, and the top ply and bottom ply being
adhered together, through their walls, to form a seal to substantially prevent
leakage of the cosmetic sample therefrom;
said bottom ply further including a barrier formation in said well,
inwardly of said bottom ply wall, said barrier formation being formed over a
substantial surface of the upper surface of the bottom ply within the confines
of its formed wall, said barrier formation being sized and shaped to impede
the flow of a sample deposited upon said bottom ply, and said top ply and
bottom ply and their walls being adhered together through the cooperation of
their walls to form a seal to substantially prevent leakage of any sample
therefrom.
Claims 12 and 18 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Kasianovitz et al. (US 5,616,337, Apr. 1, 1997) (Ans. 4).
Claims 12 and 18 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Greenland (US 5,622,263, Apr. 22, 1997) (Ans. 5).
Claims 12 and 18 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Laipply (US 4,427,111, Jan. 24, 1984) (Ans. 6).
Claims 5-9 stand rejected under 35 U.S.C. § 103(a) as obvious over
Laipply (Ans. 7).
Appeal 2010-007814
Application 10/233,136

3
ANTICIPATION
We agree with Appellant that the Examiner has not adequately
explained how each of Kasianovitz, Greenland, and Laipply teaches a
sampler comprising a bottom ply having an upper surface, a wall formed on
the upper surface, which defines a well, and a barrier formation in the well,
inwardly of the wall, which is formed over a substantial surface of the upper
surface that is within the confines of the wall. The Examiner appears to
interpret the barrier formation and the wall recited in the claims as being
identical (see Ans. 9), but the claims require both a barrier formation and a
wall, as separate elements. We therefore reverse the anticipation rejections
of claim 18 and of claim 12, which depends from claim 18.
OBVIOUSNESS
As discussed above, we agree with Appellant that the Examiner has
not adequately explained how Laipply anticipates claim 18, nor has the
Examiner explained why the sampler of claim 18 would have been obvious.
For at least this reason, we reverse the obviousness rejection of claims 5-9,
which depend from claim 18.

Appeal 2010-007814
Application 10/233,136

4
REVERSED

alw

PAUL M. DENK
763 SOUTH NEW BALLAS ROAD
ST. LOUIS, MO 63141