Ex Parte Kleinsmith

Patent Trial and Appeal Board

Aug 27, 2013

11592625 (P.T.A.B. Aug. 27, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte RANDALL JAMES KLEINSMITH
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Appeal 2011-010688
Application 11/592,625
Technology Center 3700
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Before EDWARD A. BROWN, LYNNE H. BROWNE, and
MITCHELL G. WEATHERLY, Administrative Patent Judges.
WEATHERLY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the final decision of
the Examiner rejecting claims 2-16 and 24. Claims 1, 17-23, and 25 are
canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
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The claims are directed to a product display assembly. Claim 24,
reproduced below, is the sole independent claim and representative of the
claimed subject matter:
24. A product display assembly comprising:
a supporting medium comprising a maximum
length boundary of a shipping and display space and a
maximum width boundary of the shipping and display
space;
a plurality of product packages, loaded on the
supporting medium, comprising a maximum height
boundary of the shipping and display space, a length
boundary, and a width boundary; wherein each product
package comprises one or more outward facing sides
wherein each outward facing side is flat and comprises
substantially similar brand logos; and wherein each
product package comprises a negative side, wherein the
negative side of the product package is not outward
facing and comprises characteristics selected from the
group consisting of: seams, closures, adhesive, regulatory
information, mechanical fasteners, and combinations
thereof.
REFERENCES
The Examiner relies upon the following evidence:
Carstens
Lee
US 5,339,957
US D556,051 S
Aug. 23, 1994
Nov. 27, 2007
Attachment I, “Bounty Pallet Display” submitted by Appellant
with the Remarks of 02/19/2009 (“Attachment I”).
REJECTIONS
Appellant seeks our review of the following rejections:
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1. Claims 2-4, 6-16, and 241 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Carstens and Lee. Ans. 4-8.
2. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Carstens, Lee, and Attachment I. Ans. 9.
OPINION
Obviousness of claims 2-4, 6-16, and 24 over Carstens and Lee
Appellant argues for reversing the rejection of claims 2-4, 6-16, and
24 as a group. Br. 3. We select independent claim 24 as being
representative of the group with our analysis of claim 24 controlling the
disposition of all claims in the group. 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner finds that Carstens describes a product display
substantially as set forth in claim 24 with the difference being that Carstens
does not explicitly describe a “negative side” on the product package as
defined in the claim. Ans. 5. The Examiner finds, however, that Lee
describes such a product package with the negative side including
“regulatory information.” Id. at 6. The Examiner reasons that a skilled
artisan would have found it obvious to arrange product packages like Lee’s
in a display like Carstens’ to “maximize the advertising exposure” and
provide a “visually aesthetic appearance.” Id. The Examiner also finds that
arranging product packages as suggested by the combination of Carstens and
Lee “does no more that yield predictable results.” Id.

1 The Examiner only listed claims 2-4, 7, 11-14, and 24 as being subject to
this ground of rejection. Ans. 4. However, the Examiner addresses claims
2-4, 6-16, and 24 in the body of the rejection. Id. at 4-8.
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Appellant agrees that Carstens is representative of pallet assemblies
and silent regarding “negative sides” as claimed. Br. 3. Appellant also
agrees that Lee is representative of common product packaging. Id.
Nonetheless, Appellant contends that stacking Lee’s product on a pallet as
shown in Carstens would “inevitably yield a pallet for which the . . .
negative side of at least one product is facing outwardly on at least one side
of the pallet.” Id. We disagree.
Appellant impliedly reasons that every package of products described
by Lee would necessarily be stacked in a particular orientation (e.g., resting
on the “bottom” with Lee’s “right side” oriented in a vertical plane) on the
product display. Appellant fails to recognize that each of Lee’s products
could simply be stacked on Carstens’s pallet with the “right side” facing
downward, which would satisfy all claim requirements. The Examiner also
finds that individual product packages could be oriented differently from
each other on Carstens’s pallet so that the “negative side” of every package
was hidden. Ans. 11. Appellant’s argument that rests upon the difficulty of
orienting individual product packages differently on the same pallet is
inapposite because claim 24 recites no limitations on how the claimed
assembly is built. For these reasons, we affirm the rejection of claim 24 and
its dependent claims 2-4 and 6-16.
Obviousness of claim 5 over Carstens, Lee, and Attachment I
Claim 5 depends directly upon claim 24 and further recites that “the
product packages comprise disposable paper products.” Appellant argues
that Attachment I describes a “random orientation of packages on a pallet”
with “some of the products . . . oriented with the negative side outwardly
facing, and others not.” Br. 5. However, the Examiner relies upon the
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teachings of Attachment I solely to establish that it was well known to
arrange disposable paper products in a product display. Ans. 9. Therefore,
Appellant’s critique of Attachment I does not persuade us of error, and we
affirm the rejection of claim 5.
DECISION
For the reasons stated above, we affirm the rejection of claims 2-16
and 24.
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

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