Ex Parte Hailey et alDownload PDFPatent Trial and Appeal BoardAug 22, 201813622586 (P.T.A.B. Aug. 22, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/622,586 09/19/2012 27752 7590 08/24/2018 THE PROCTER & GAMBLE COMPANY Global IP Services Central Building, C9 One Procter and Gamble Plaza CINCINNATI, OH 45202 FIRST NAMED INVENTOR Kerri Crain Hailey 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 12600Q 4600 EXAMINER IMAM, TANZIM ART UNIT PAPER NUMBER 3721 NOTIFICATION DATE DELIVERY MODE 08/24/2018 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 KERRI CRAIN HAILEY, JEFFREY STEVEN WHITE, LUCA MINUTILLO, and LUKE ANTHONY SNIDER Appeal 2017-001140 Application 13/622,586 1 Technology Center 3700 Before JILL D. HILL, NATHAN A. ENGELS, and PAUL J. KORNICZKY, Administrative Patent Judges. ENGELS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 4-- 6. Claims 1-3 are canceled. We have jurisdiction under 35 U.S.C. § 6(b ). We affirm. 1 Appellants identify The Proctor & Gamble Company as the real party in interest. Appeal Br. 1. Appeal 2017-001140 Application 13/622,586 ILLUSTRATIVE CLAIM Claim 4, reproduced below, is illustrative of the claimed subject matter: 4. A method for minimizing the wetness gradient of packages of wet wipes at the time of consumer use, comprising: providing a plurality of packages of wet wipes, the plurality of packages each having a package top, a package bottom, a stack of wet wipes disposed between the package top and the package bottom, and a dispensing opening feature disposed on the package top; providing a container having a container top, a container bottom and four vertically oriented container side walls with four outward-facing surfaces, the container top, the container bottom and the container side walls defining and enclosing an interior space, at least one of the four outward-facing surfaces of the container side walls bearing a first indicium comprising a multi- character word having a beginning character and an ending character, wherein a first line segment may be drawn connecting a bottom of the beginning character at a first point and a bottom of the ending character at a second point, and the first line segment and a second line segment that may be drawn beginning at the first point and extending horizontally rightward to an edge of the at least one of the four outward-facing surfaces, form an angle with a first vertex at the first point that is no greater than 90 degrees, when the container is upside-down; disposing the plurality of packages of wet wipes in the interior space with each package top thereof closest the container top and each package bottom thereof closest the container bottom; inverting the container to an upside-down position so that each package top faces downward and each package bottom faces upward; and shipping the container in the upside-down position. 2 Appeal 2017-001140 Application 13/622,586 THE REJECTIONS Claims 4--6 stand rejected under 35 U.S.C. § I03(a) as being unpatentable in view of Julius (US 2005/0194395 Al; published Sept. 8, 2005), Rowe (US 8,006,466 B2; issued Aug. 30, 2011), Ken Jorgustin, Moving Boxes for Storage or Shipping, (Feb. 26, 2012), http://modemsurvivalblog.com/preps/ moving-boxes-for-storage-or-shipping [http://web.archive.org/web/ 20120704075431/http://modemsurvivalblog.com/preps/moving-boxes-for- storage-or-shipping], and Kartograf, vintage Adidas box, https://www.flickr.com/photos/danilavolkov/3304809250/in/photostream/ (last visited Sept. 1, 2015). Claims 4--6 stand rejected under 35 U.S.C. § I03(a) as being unpatentable in view of Julius, Rowe, Jorgustin, and Hagedorn (US 5,524,899; issued June 11, 1996). ANALYSIS We have considered the Examiner's rejections in light of each of Appellants' arguments and the evidence of record. We disagree with Appellants' arguments and are unpersuaded of error in the Examiner's rejections. We sustain the Examiner's rejections of claims 4--6 and provide the following analysis primarily for emphasis. The Supreme Court has explained that "[ w ]hen there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398,421 (2007). "If this leads to the 3 Appeal 2017-001140 Application 13/622,586 anticipated success, it is likely the product not of innovation but of ordinary skill and common sense." Id. Appellants' Specification explains that a stack of wet wipes may develop a wetness gradient over time as gravity draws liquid downward, which may leave the wipes at the top of the stack drier than the wipes at the bottom of the stack. Spec. 1:24--27; see also Spec. 2:1-3 ("any improvement that provides a practical and cost-effective way to effect a reduction of the wetness gradient in a stacked wet wipes product would provide a competitive advantage for the manufacturer"). Addressing that problem, Appellants' claim 4 recites a "method for minimizing the wetness gradient of packages of wet wipes at the time of consumer use" that includes "shipping the container [ of a plurality of packages of wet wipes] in the upside-down position." The prior art recognized the same problem, and, as cited by the Examiner, Julius teaches a method for minimizing the wetness gradient of a package of wet wipes by inverting the package to an upside-down position. Final Act. 2-3 (citing Julius ,r,r 20, 21, 53, 66, 68, Figs. IA, 8, 9). Specifically, Julies explains that liquid in a container of wipes tends to be unevenly distributed, with wipes at the bottom of the container being wetter than wipes at the top of the container (Julius ,r 3), and Julius teaches a wipe dispenser that holds a package of wipes in an inverted orientation (e.g., id., ,r,r 20, 66, 68, Abstract, Title ("Inverted Wet Wipe Dispenser"). Appellants argue that Julius's teachings are limited to a dispensing apparatus for an individual container of wipes and that Julius's teachings are not related to packaging and shipping. Reply Br. 4--5. Contrary to Appellants' suggestion, however, even though Julius does not specifically 4 Appeal 2017-001140 Application 13/622,586 address packaging and shipping containers of wet wipes, Julius plainly evidences that inverting a package of wet wipes provides a predictable solution to the problem of a wetness gradient within packages. See, e.g., Julius ,r 3. Indeed, in addition to Julius's dispensing system, Julius evidences that it was known to invert containers of wipes to minimize the wetness gradient over a period of time: "users have tended to invert the containers and leave them in that condition for a period of time in order to more evenly distribute th[e] liquid throughout the container." Id. Appellants concede that it was known to ship a plurality of individual packages of wet wipes in bulk within a larger shipping container (Reply Br. 4), and we agree with the Examiner the "inverting" and "shipping" steps of claim 4 would have been obvious in view of Julius's teachings of a predictable, common-sense solution to the problem of a wetness gradient that packages of wet wipes may experience over a period of time, such as the period of time during which the packages are shipped (see KSR, 550 U.S. at 421 ). We are also unpersuaded of error in the Examiner's rejections by Appellants' arguments relating to the "recited indicium at the recited location in the recited orientation." Appeal Br. 6; accord Reply Br. 2-3 ( arguing the prior art does not teach or suggest "a container with an inverted indicium on a side wall"). The Examiner cites Jorgustin, Kartograf, and Hagedorn as evidencing that it was known in the prior art to have indicium arranged in a variety of locations and in a variety of orientations, including orientations that ensure that the indicium is easily legible when its substrate is upside down. See, e.g., Ans. 17-18. We agree with the Examiner's reasoning that Appellants' claimed step of "providing a container" having a 5 Appeal 2017-001140 Application 13/622,586 top, four walls, and a bottom with "at least one of the four outward facing surfaces of the container side walls bearing a first indicium comprising a multiple character word" would have been obvious in view of the prior art. We further note nothing in claim 4---including the recitations of a "first line segment that may be drawn" and a "second line segment that may be drawn" to "form an angle with a first vertex at the first point that is no greater than 90 degrees, when the container is upside down"-actually requires an "inverted indicium" (see Appeal Br. 6-7; Reply Br. 2-3). Even if claim 4 did effectively recite an inverted indicium, the mere rearrangement or reorientation of indicia, without more, would have been obvious in view of the indicia of the prior art for the reasons explained by the Examiner. Finally, we also disagree with Appellants' arguments that the claimed invention represents a solution to a long-felt need. Appeal Br. 7-8; Reply Br. 5---6. As discussed above, the prior art evidences that inverting a package of wet wipes for a period of time was a known solution to the problem of a wetness gradient in packages of wet wipes. See Julius ,r 3. Appellants have not established that the claimed invention uniquely overcomes a long-felt, unresolved need nor have Appellants adequately established any other evidence of a secondary consideration of nonobviousness. Accordingly, we sustain the Examiner's rejections of claim 4, as well as the Examiner's rejections of claims 5 and 6, which Appellants do not independently. DECISION We affirm the Examiner's rejections of claims 4---6. 6 Appeal 2017-001140 Application 13/622,586 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 7 Copy with citationCopy as parenthetical citation