Ex Parte Gibis et alDownload PDFPatent Trial and Appeal BoardJun 12, 201311910785 (P.T.A.B. Jun. 12, 2013) Copy Citation 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. 11/910,785 11/06/2007 Karl Ludwig Gibis 102792-768 9964 27389 7590 06/12/2013 PARFOMAK, ANDREW N. NORRIS MCLAUGHLIN & MARCUS PA 875 THIRD AVE, 8TH FLOOR NEW YORK, NY 10022 EXAMINER ASDJODI, MOHAMMADREZA ART UNIT PAPER NUMBER 1767 MAIL DATE DELIVERY MODE 06/12/2013 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 KARL LUDWIG GIBIS, CHRIS EFSTATHIOS HOUSMEKERIDES, and RAINER LINK ____________ Appeal 2012-005492 Application 11/910,785 Technology Center 1700 ____________ Before RICHARD TORCZON, JAMES C. HOUSEL, and GRACE KARAFFA OBERMANN, Administrative Patent Judges. OBERMANN, Administrative Patent Judge. DECISION ON APPEAL Appellants seek relief from the Examiner's final rejection of Claims 1-18 directed to an emanator blister. Claim 19 is cancelled. App. Br. 4. A hearing was conducted on June 4, 2013. We AFFIRM. Claim 1, the only independent claim, reads as follows: 1. An emanator blister, having a membrane comprising a blend of polybutylene terephthalate (PBT) and polyethylene terephthalate (PET), the blister containing a liquid detersive active. Appellants argue Claims 1-18 as a group, but refer to Claim 8 in an argument relating to membrane thickness. App. Br. 5 (first full paragraph). Our analysis of Claims 1 and 8 disposes of all issues raised in this appeal. Appeal 2012-005492 Application 11/910,785 2 The Examiner rejects Claim 1 as unpatentable over Gibis1 in view of Brown2. The Examiner finds that Gibis discloses an emanator blister membrane comprising polyethylene acrylate (PEEA). 3 Ans. 4 (citing Gibis [0007]). The Examiner further finds that Brown establishes that PET/PBT blend was an art-recognized alternative understood to be interchangeable with PEEA for forming a membrane. Id. at 5 (citing Brown [0025]). On that basis, the Examiner reasons that substituting Brown’s PET/PBT blend for PEEA in Gibis’ emanator blister membrane would have been an obvious modification well within the reach of a skilled artisan. Id. The Specification explains that the inventive blister “comprises a film/membrane[.]” Spec. 1:33. The Specification further describes the blister as “a body containing [a] liquid to be emanated” such as “fragrance” or “detergent components” for “use in a machine dishwasher.” Spec. 1:6, 25-28. Brown similarly relates to “containers, films and sheets” useful for containing a wide array of items, including “detergents” and “fragrances[.]” Brown [0088]; [0086] (items include packaging for “household chemicals such as fragrant laundry detergent” and “fragrant fabric softener”). The nub of Appellants’ argument is that Brown discloses “a PET/PBT blend” that “relates to packaging” but “says nothing about” the blend having 1 US 2006/0194710 A1, published August 31, 2006. 2 US 2006/0105130 A1, published May 18, 2006. 3 We agree with Appellants that Gibis states a preference for polyetheresteramide membrane materials. App. Br. 4-5 (citing Gibis [0045]). That stated preference does not nullify Gibis’ unequivocal disclosure that PEEA was an art-recognized material known to be suitable for use in an emanator blister membrane. Ans. 4 (citing Gibis [0007]). Appeal 2012-005492 Application 11/910,785 3 “applicability as a membrane” in an emanator blister. App. Br. 5. In this regard, Appellants contend that Brown’s materials work “solely to contain contents” whereas “a membrane will transfer certain chemical species over others[.]” App. Br. 5. Appellants direct us to no terms in Claim 1 or disclosure in the Specification requiring that the inventive membrane be capable of such transfer. On the contrary, the Specification contemplates emanation that occurs by mechanical “piercing” of the blister as an alternative to “passage through a permeable blister component[.]” Spec. 1:25-30. On this record, Appellants fail to distinguish Brown’s “film” from the inventive “film/membrane” based upon a difference in permeability. Compare Brown [0088] (disclosing a “film” for containing “detergents” or “fragrances”) to Spec. 1:6, 23-24, 33 (disclosing “a film/membrane” for “containing [a] liquid to be emanated” such as “detergent” or “fragrance”). Appellants also argue that the inventive membrane has a thickness on the order of microns whereas Brown’s material has a thickness on the order of millimeters. App. Br. 5 (citing Claim 8, which requires a membrane having a thickness of less than 500µm, and Brown [0088], which describes a plethora of applications for containers, films, and sheets). As the Examiner points out, “the similarly used polymer” disclosed in Gibis “does indeed have the claimed thickness.” Ans. 6; compare Gibis [0030] (“thickness of less than 500µm”) to Claim 8 (“thickness of less than 500µm”). One cannot show nonobviousness by attacking references individually where, as here, the rejection is based on a combination of references. In re Keller, 642 F.2d Appeal 2012-005492 Application 11/910,785 4 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Appellants direct us to no persuasive evidence that Brown’s film must have a thickness on the order of millimeters. App. Br. 5 (citing Brown [0088]). Brown’s reference to “films less than 10 mil thick” falls short of precluding a film having a thickness on the order of microns. Brown [0088]. Nor do Appellants direct us to any evidence supporting their argument that “reducing the thickness of Browns’ PET/PBT polymer would render [] Brown’s invention unsuitable for its intended use as a packaging material.” App. Br. 5. On this record, Appellants fail to establish error in the Examiner’s finding that a skilled artisan would have recognized the utility of Brown’s PET/PBT material for forming a membrane with a “thickness of less than 500µm[.]” Gibis [0030]; see Ans. 5 (second full paragraph). Appellants raise no other argument or evidence tending to establish error in the Examiner’s finding that Brown’s material (PET/PBT blend) was an art-recognized alternative for forming a membrane. App. Br. 4-5. On this record, the Examiner prima facie shows that Claim 1 is unpatentable over Gibis in view of Brown. A question remains whether Appellants come forward with evidence sufficient to rebut that showing. Appellants come forward with evidence that the emanator blister membrane of Claim 1, over the course of “40 wash cycles,” produces a “nearly linear” release rate of surfactant “consistent at 0.44g per wash.” App. Br. 6 (citing Spec. Table). Critically lacking is any persuasive evidence that this result is unexpected compared to the closest prior art. See App. Br. 5-6 (raising no comparative data); In re Baxter Travenol Labs., Appeal 2012-005492 Application 11/910,785 5 952 F.2d 388, 392 (Fed. Cir. 1991) (unexpected results “must be shown to be unexpected compared with the closest prior art” (citation omitted)). The Specification states that “almost linear release of surfactant is a highly unexpected advantage . . . when compared with previous fragrance emanator blisters which normally release their fragrance content in an exponential release.” Spec. 18:5-10. On that basis, Appellants argue “[t]he record is clear that prior art emanators . . . exhibit exponential” and not linear release during multiple wash cycles. Reply Br. 2 (citing Spec. 17:8- 18:8). Gibis’ prior art emanator in fact achieves the linear release advanced here as an unexpected result. Gibis [0017] (inventive emanator blister “has been found to show a linear discharge of emanator contents with a uniform amount of content being released per washing cycle in a multi-cycle emanator”); [0060]-[0070] (discussing experimental data that establishes that Gibis’ emanator blister achieves “a linear rate of release of surfactant with increasing number of washes” ([0070]); Tables 1 and 2 (reflecting experimental data that shows a linear release of emanator contents during multiple wash cycles). On this record, Appellants fail to establish error in the Examiner’s position that the linear discharge results obtained by the claimed invention are not “really unexpected” when compared to the closest prior art. Ans. 7. We affirm the decision of the Examiner. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Appeal 2012-005492 Application 11/910,785 6 tc Copy with citationCopy as parenthetical citation