10955685 (B.P.A.I. Jan. 31, 2011)

Ex Parte Kaufman

Board of Patent Appeals and InterferencesJan 31, 2011

10955685 (B.P.A.I. Jan. 31, 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. 10/955,685 09/30/2004 Kenneth Kaufman 20505 4597 23556 7590 02/01/2011 KIMBERLY-CLARK WORLDWIDE, INC. Tara Pohlkotte 2300 Winchester Rd. NEENAH, WI 54956 EXAMINER WAGGONER, TIMOTHY R ART UNIT PAPER NUMBER 3651 MAIL DATE DELIVERY MODE 02/01/2011 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 KENNETH KAUFMAN ____________ Appeal 2009-010433 Application 10/955,685 Technology Center 3600 ____________ Before WILLIAM F. PATE, III, JOHN C. KERINS, and STEFAN STAICOVICI, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL1 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 2009-010433 Application 10/955,685 2 STATEMENT OF THE CASE Kenneth Kaufman (Appellant) appeals under 35 U.S.C. § 134 from the Examiner's decision rejecting claims 1-7, 10-15 and 17-20 under 35 U.S.C. § 102(b) as anticipated by Bando (US 6,109,430, issued Aug. 29, 2000) and claims 8, 9 and 16 under 35 U.S.C. § 103(a) as unpatentable over Bando. We have jurisdiction over this appeal under 35 U.S.C. § 6. THE INVENTION Appellant’s invention relates to a stack of interleaved towels. Spec. 2, l. 7. Claim 1 is representative of the claimed invention and reads as follows: 1. A stack of interleaved towels, each towel of the stack comprises a sheet of material, said sheet comprises a first surface, a first end, a second end, a centerline, a first fold, a second fold, a first panel, a second panel, a third panel, a length and a width; the first fold in the sheet is offset from the centerline ; the first fold creating a folded sheet, the first fold creating the first panel which is folded towards the first surface of the sheet; the first panel extends between the first fold and a first end in the sheet; the second fold in the sheet is substantially parallel to the first fold, the second fold creates the second panel, the second panel extends between the first fold and the second fold and the second fold creates the third panel folded toward the first panel the third panel extends between the second fold and the second end of the sheet; wherein the first end of each sheet is positioned between the second and third panels; and, wherein the third panel of each towel in the stack is disposed adjacent the first panel of an adjacent towel such that the towels are interleaved. Appeal 2009-010433 Application 10/955,685 3 SUMMARY OF DECISION We AFFIRM. OPINION The anticipation rejection based on Bando Claims 1-5, 14, 15 and 17-20 Regarding independent claims 1 and 14, Appellant argues that Bando fails to disclose, “the first end of each sheet is positioned between the second and third panels.” Br. 5. See also Br., Claims Appendix. Appellant further argues that “the first panel and the third panel do not overlap.” Br. 5. In response, the Examiner takes the position that the term “between does not directly imply overlapping.” Ans. 6. We agree. Each of independent claims 1 and 14 merely requires that the first end of each sheet be positioned “between” the second and third panels and not that the first panel and the third panel “overlap,” as Appellant argues. As stated by our reviewing court in In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998), “the name of the game is the claim.” It is well established that limitations not appearing in the claims cannot be relied upon for patentability. In re Self, 671 F.2d 1344, 1348 (CCPA 1982). In this case, the Examiner found and we agree that Bando teaches first end 18 of each sheet is positioned “between” second and third panels, 13 and 12, respectively. See Ans. 3, 5. See also, Bando, fig. 5. Accordingly, the rejection of independent claims 1 and 14 under 35 U.S.C. § 102(b) as anticipated by Bando is sustained. Regarding the rejection of claims 2-5, 15 and 17-20, Appellant does not present any additional arguments. Br. 6. As such, the rejection of Appeal 2009-010433 Application 10/955,685 4 claims 2-5, 15 and 17-20 under 35 U.S.C. § 102(b) as anticipated by Bando is likewise sustained. Claims 6, 7 and 10-13 Regarding independent claim 6, Appellant first argues that Bando fails to disclose that the “trailing flap of each sheet is at least partially positioned over an end edge of the short side of that sheet.” Br. 7. See also Br., Claims Appendix. Emphasis added. We begin our analysis by construing the phrase “positioned over.” Appellant’s Specification does not expressly define the terms “positioned” and “over” or otherwise indicate that these terms are used in a manner other than their ordinary and customary meaning. Accordingly, we construe these terms in accordance with their ordinary and customary meaning. See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). An ordinary and customary meaning of the term “position” is “1 : an act of placing or arranging . . .”. MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (11th Ed. 2005). An ordinary and customary meaning of the term “over” is “3 a : ABOVE.” Id. Hence, we construe the phrase “positioned over” to mean “arranged above.” The Examiner found, and we agree that, if the dispenser of Bando were inverted, the trailing flap 12 of each sheet of Bando is at least partially positioned over (arranged above) an end edge 18 of the short side of that sheet. Ans. 4. Since, the trailing flap 12 of each sheet in Bando is at least partially “arranged above” an end edge 18 of the short side of that sheet (fig. 5), we find that the trailing flap of each sheet is at least partially “positioned over” an end edge of the short side of that sheet, as required by claim 6. Appeal 2009-010433 Application 10/955,685 5 Further with respect to claim 6, Appellant argues that Bando fails to disclose that the towels are interleaved. Br. 7. See also Br., Claims Appendix. However, pointing to Figure 5 of Bando, the Examiner found that the towels are interleaved. Ans. 4. Appellant has not provided any evidence to show why the Examiner’s interpretation of Bando does not satisfy this limitation of claim 6. In conclusion, for the reasons discussed above, the rejection of independent claim 6 under 35 U.S.C. § 102(b) as anticipated by Bando is sustained. Regarding the rejection of claims 7 and 10-13, Appellant does not present any additional arguments. Br. 8. As such, the rejection of claims 7 and 10-13 under 35 U.S.C. § 102(b) as anticipated by Bando is likewise sustained. The obviousness rejection over Bando Regarding the rejection of claims 8, 9 and 16 under 35 U.S.C. § 103(a) as unpatentable over Bando, Appellant does not present any additional arguments from those presented above with respect to the rejection of independent claims 6 and 14 under 35 U.S.C. § 102(b) as anticipated by Bando. See Br. 8. Accordingly, for the reasons discussed above, these arguments are not persuasive. Hence, the rejection of claims 8, 9 and 16 over Bando is also sustained. DECISION The decision of the Examiner to reject claims 1-20 is affirmed. Appeal 2009-010433 Application 10/955,685 6 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 mls KIMBERLY-CLARK WORLDWIDE, INC. TARA POHLKOTTE 2300 WINCHESTER RD. NEENAH, WI 54956