Ex Parte Grippo

Board of Patent Appeals and Interferences

Apr 27, 2006

10379307 (B.P.A.I. Apr. 27, 2006)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte JAMES P. GRIPPO
_____________
Appeal No. 2006-1328
Application No. 10/379,307
______________
ON BRIEF
_______________
Before KIMLIN, PAK and FRANKLIN, Administrative Patent Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-18.
Claim 1 is illustrative:
1. A dryer sheet enhancer, for improving the
effectiveness of using a dryer sheet, said dryer sheet
enhancer comprising:
a) a flexible member having a predetermined size and
a first predetermined shape, said flexible member being made
from a predetermined material;
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b) at least one incision, having a predetermined
length, formed through said flexible member at a
predetermined location for receiving a portion of a dryer
sheet and securing such dryer sheet therein; and
c) an aperture, having a second predetermined shape,
formed through said flexible member at each terminal end of
said at least one incision.
The examiner relies upon the following references as
evidence of obviousness:
Tiegler et al. (Tiegler) 2,264,489 Dec. 2, 1941
Prueher 4,245,752 Jan. 20, 1981
Kingry et al. (Kingry) 6,305,046 Oct. 23, 2001
Mattia et al. (Mattia) 2003/0207785 A1 Nov. 6, 2003
Appellant’s claimed invention is directed to a dryer sheet
enhancer which secures a dryer sheet that is used in a clothes
dryer. The enhancer is a flexible member having at least one
incision for receiving and securing a portion of the dryer sheet.
Also, an aperture is formed through the flexible member at the
terminal end of the incision.
Appealed claims 1-9 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Tiegler in view of Prueher. Claims 1-
18 stand rejected under 35 U.S.C. § 102(e) as being anticipated
by Mattia.
Appellant presents separate arguments for claims 2, 5, 6, 8
and 17. Accordingly, claims 3, 4, 7, 9-16 and 18 stand or fall
together with claim 1.
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We have thoroughly reviewed each of appellant’s arguments
for patentability. However, we find that the examiner’s
rejections are well-founded and supported by the prior art
evidence relied upon. Accordingly, we will sustain the
examiner’s rejections for essentially those reasons expressed in
the answer, and we add the following primarily for emphasis.
We consider first the examiner’s Section 103 rejection of
claims 1-9 over Tiegler in view of Prueher. There is no dispute
that Tiegler, like appellant, discloses a flexible member having
slits or incisions at predetermined locations of the member.
While Tiegler does not teach that the flexible member can be used
to receive and secure a dryer sheet, we fully concur with the
examiner that the member of Tiegler is fully capable of doing so.
As explained by the examiner, the preamble of the appealed claims
is merely a statement of intended use which does not serve to
structurally distinguish the claimed article from the article
disclosed by Tiegler.
As appreciated by the examiner, the flexible member of
Tiegler does not have the claimed aperture at the terminal end of
the incision. However, we agree with the examiner that Prueher
establishes the obviousness of doing so for the purpose of
preventing tearing of the member. Again, it is of no moment that
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neither Tiegler nor Prueher describes the disclosed articles as a
dryer sheet enhancer. Nor is it significant, as urged by
appellant, that Tiegler is directed to a bottle support and
Prueher is directed to a lid for a drinking container. We
subscribe to the examiner’s rationale that one of ordinary skill
in the art would have understood that Prueher’s teaching of using
round apertures at the end of slits in flexible members would
translate to the slits of Tiegler’s flexible member for
preventing tears therein. In our view, Prueher establishes the
obviousness of utilizing an aperture at the end of an incision or
slit in flexible members, in general, for the purpose of
preventing tears in the flexible member. We are satisfied that
one of ordinary skill in the art would consider the principle
underlining the use of an aperture as applicable to all such
flexible members, whether they are used as a bottle support, a
container lid or a dryer sheet enhancer.
Concerning separately argued claim 5, which recites that the
sheet enhancer is “generally dish-like” in shape, we agree with
the examiner that the generally round shape of Tiegler’s flexible
member meets the requirement of being generally dish-like.
Regarding claim 8, appellant maintains that “if the slits in
the flexible sheet as taught by Tiegler et al. were terminated
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with apertures as taught by Prueher, as suggested by the
Examiner, it would probably weaken the fingers formed by the
slits design for holding a bottle to the extent that the bottle
may not [sic, be] supported properly” (sentence bridging pages
6 and 7 of brief). First, appellant has presented no evidence to
support such a speculative assertion. Secondly, we are confident
that one of ordinary skill in the art would have found it obvious
to design the size of the apertures such that a balance between
support and the prevention of tears is effected.
We now turn to the Section 102 rejection of all the appealed
claims over Mattia. Mattia, like appellant, discloses a dryer
sheet enhancer for a clothes dryer, and we agree with the
examiner that the enhancer of Mattia includes a flexible member
that meets the requirements of the appealed claims. Figure 4 of
Mattia, when read in light of the patent to Kingry that is
incorporated by reference, depicts a flexible member having
incisions therein with apertures at the end of the incisions. It
is the appellant’s contention that securement devices 20 of
Mattia which extend through the upper layer of the holder 15 and
into a cavity, do not meet the claim requirement for forming an
incision “through said flexible member.” However, we agree with
the examiner that the claims on appeal do not require that the
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incision pass entirely through one surface of the member and also
through the opposite surface of the member. Like the examiner,
we find that the incision of Mattia is formed through the
flexible member. Also, we find that the securement devices 20 of
Mattia, per se, apart from holder 15, meet the requirements of
the claimed flexible member. As for appellant’s argument that
the holders of Mattia are generally described as cylindrical,
rectangular or square blocks, and not dish-like in shape as
claimed, we concur with the examiner that “[a] dish may have a
square or rectangular shape” (page 9 of answer, penultimate
paragraph).
Appellant also contends that “[t]here is no teaching in
Mattia et al. about the incisions or slots being terminated with
an aperture to prevent the plurality of incisions from tearing”
(page 10 of brief, second paragraph). However, appellant does
not address the examiner’s citation of Kingry, incorporated by
Mattia, for enhancing the features of Mattia’s figure 4.
Manifestly, Kingry illustrates apertures at the end of the
incisions.
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As a final point, with respect to the Section 103 rejection,
we note that appellant bases no argument upon objective evidence
of nonobviousness, such as unexpected results.
In conclusion, based on the foregoing, and for the reasons
well-stated by the examiner, the examiner’s decision rejecting
the appealed claims is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHUNG K. PAK ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
BEVERLY A. FRANKLIN )
Administrative Patent Judge )
ECK:hh
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Application No. 10/379,307
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JAMES RAY & ASSOCIATES
2640 PITCAIRN RD.
MONROEVILLE, PA 15146