Ex Parte Hays

Board of Patent Appeals and Interferences

Dec 10, 2010

10190039 (B.P.A.I. Dec. 10, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MARY K. HAYS
____________

Appeal 2009-013886
Application 10/190,039
Technology Center 3600
____________

Before EDWARD C. KIMLIN, PETER J. KRATZ, and
BEVERLY A. FRANKLIN, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL1

This is an appeal from the final rejection of claims 1 and 3-20. Claim
1 is illustrative:

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.

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1. A visor bracket for dispensing tissues from a packet of
tissues in a vehicle comprising an upper support, a central
ledge, and a lower ledge, a first connecting member connecting
said upper support from an edge thereof to said central ledge at
a first edge of said central ledge, a second connecting member
connecting said lower ledge from an edge thereof to a second
edge of said central ledge, said second edge of said central
ledge being opposite said first edge thereof, said upper support,
first connecting member, central ledge, second connecting
member, and lower ledge thereby forming a bracket having an
S-shaped profile, said bracket further being resilient so as to be
capable of clamping onto an automobile visor between said
upper support and said central ledge and retaining a collapsible
packet of tissues between said central ledge and said lower
ledge with sufficient clamping force to hold both a full packet
of tissues and a packet containing only one tissue, throughout
the tenure of use of said packet, said lower ledge also defining a
central opening for tissues to be removed transversely through
said lower ledge from said collapsible packet.

The Examiner relies upon the following references as evidence of
obviousness:

Mallory 2,306,174 Dec. 22, 1942
Rome 2,564,997 Aug. 21, 1951
Gross 5,065,970 Nov. 19, 1991
Greene 5,640,743 Jun. 24, 1997
Julius 6,431,360 B1 Aug. 13, 2002
Thompson 6,484,365 B1 Nov. 26, 2002

Appellant’s claimed invention is directed to a visor bracket for
dispensing tissues from a packet of tissues in a vehicle. The bracket has an
S-shaped profile which clamps onto an automobile visor between its upper
support and central ledge. The bracket is capable of retaining a collapsible
packet of tissues between its central ledge and its lower ledge with sufficient
clamping force to hold both a full packet of tissues and a packet containing
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Application 10/190,039

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only one tissue. The lower ledge also defines a central opening for
removing the tissues.
The appealed claims stand rejected under 35 U.S.C. 103(a) as follows:
(a) claims 1, 6-9, 11 and 12 over Mallory in view of Julius,
(b) claims 3, 13, 14, 16 and 18-20 over Mallory in view of Julius and
Greene,
(c) claims 4 and 15 over Mallory in view of Julius and Rome,
(d) claim 5 over Mallory in view Julius, Rome and Thompson,
(e) claim 10 over Mallory in view of Julius and Gross, and
(f) claim 17 over Mallory in view of Julius and Greene further in view
of Gross.
We have thoroughly reviewed each of Appellant’s arguments for
patentability. However, we are in complete agreement with the Examiner
that the claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner’s rejections for essentially those
reasons expressed in the Answer, which we incorporate herein, and we add
the following primarily for emphasis.
There is no dispute that Mallory, like Appellant, discloses a bracket
which attaches to a visor in an automobile and comprises elements which
correspond to Appellant’s central and lower ledges for retaining paper and
record cards therebetween. As recognized by the Examiner, Mallory does
not teach retaining a packet of tissues in the bracket, but we concur with the
Examiner that the reference bracket is fully capable of doing so. Also, since
Julius evidences that it was known in the art to attach a tissue-dispensing
bracket to the visor of an automobile, we have no doubt that it would have
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been obvious for one of ordinary skill in the art to retain a packet of tissues
in the bracket of Mallory while making any necessary modifications thereto,
e.g., the spring force exerted by spring clip 15.
A principal argument advanced by Appellant is that Mallory does not
disclose or suggest a bracket capable of retaining a collapsible packet of
tissues between a central ledge and a lower ledge with sufficient clamping
force to hold both a full packet of tissues and a packet containing only one
tissue, throughout the tenure of use of the packet. However, since Mallory
teaches that spring clip 15 serves to retain a single, thin record or card
securely in place while also permitting its ready removal, we, like the
Examiner, find it reasonable to conclude that Mallory’s spring clip 15 is also
capable of exerting sufficient clamping force to hold both a full packet of
tissues and a packet containing only one tissue. Significantly, the brackets
of both Appellant and Mallory may be formed from sheet metal (see para. 22
of Appellant’s Specification), and Appellant has apprised us of no
convincing reason why the bracket of Mallory, made from the same material
as Appellant’s, is not capable of retaining multiple tissues or a single tissue.
Moreover, since Julius teaches the use of a visor bracket for retaining and
dispensing tissue, we are persuaded that one of ordinary skill in the art
would have found it obvious to modify the spring force of Mallory’s spring
clip to more readily accommodate tissues, if such a modification was
necessary.
Also, while the notch in spring clip 15 of Mallory may serve as an
opening to dispense tissues, we are satisfied that it would have been obvious
for one of ordinary skill in the art to provide an opening in the central
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portion of the clip in the shape of an oval or slot for removing tissue or any
other article held by the bracket.
We also find no merit in Appellant’s argument that “Mallory’s device
does not form an S-shaped profile” (Reply. Br. 4, second para.). We agree
with the Examiner that the bracket shape depicted in Figure 2 of Mallory
fairly conforms to the shape of an S, even though it may be considered
squashed, as asserted by Appellant. In our view, the shape of Mallory’s
device generally corresponds to the shape shown in Appellant’s Figure 1a.
Appellant also contends that a tissue could not be stuffed into the
pocket of Mallory’s bracket, nor could it be removed (Prin. Br. 9,
penultimate para.). However, Appellant has not explained why the bracket
of Mallory, which is designed to accommodate a plurality of record cards or
booklets, or a single record (page 1, col. 1, 5th para.), would not be able to
retain a soft packet of tissue.
We are also not persuaded by Appellant’s argument that Julius’
disclosure that the dispenser package is not pinched by the holder is a
teaching away from the claimed invention. As pointed by the Examiner,
Julius is cited only as evidence that it was known in the art to use a visor
bracket to dispense tissue. It is Mallory that teaches a bracket which applies
a clamping or pinching force to the article being retained therein.
Appellant also maintains that the lower ledge of Mallory’s device is
fixed and does not adjust to the diminishing thickness of a packet, as
presently claimed. However, it stands to reason that the spring force of
Mallory’s clip which retains a thin card would also be capable of adjusting
when holding a thicker article. Also, it would seem that the brackets of
Appellant and Mallory, made from the same sheet metal, would have the
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same spring property when formed into a generally S-shaped bracket. In any
event, it would have been obvious to one of ordinary skill in the art to make
an appropriate modification to the bracket of Mallory to have a suitable
spring property for holding a packet of tissues and dispensing same, if such a
modification were necessary. In this regard and as noted above, Julius
evidences that it was known in the art to attach a tissue-dispensing bracket to
the visor of an automobile. This would have incentivized one of ordinary
skill in the art to employ a sun visor bracket, like that of Mallory, for holding
a tissue packet for easy availability of the held item when driving (Ans. 4).
As a final point, we note that Appellant bases no argument upon
objective evidence of non-obviousness, such as unexpected results.
In conclusion, based on the foregoing and 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 C.F.R. § 1.136(a).

AFFIRMED

kmm

WILLIAM L. KRAYER
1771 HELEN DRIVE
PITTSBURGH, PA 15216