Ex Parte Koch

Patent Trial and Appeal Board

Feb 8, 2017

14021039 (P.T.A.B. Feb. 8, 2017)

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.
14/021,039 09/09/2013 Piotr KOCH CM3135C 6706
27752 7590 02/10/2017
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
NGUYEN, HAIDUNG D
ART UNIT PAPER NUMBER
1761
NOTIFICATION DATE DELIVERY MODE
02/10/2017 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 PIOTR KOCH
Appeal 2016-000231
Application 14/021,039
Technology Center 1700
Before GEORGE C. BEST, BRIAN D. RANGE, and LILAN REN,
Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35U.S.C. § 134 from a Rejection2 of claims
1—20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm for reasons well-stated by the Examiner.
1 The real party in interest is identified as The Procter & Gamble Company
of Cincinnati, Ohio. (Appeal Brief, filed March 3, 2015 (“App. Br.”), 1.)
2 Final Office Action mailed December 3, 2014 (“Final Act.”).
Appeal 2016-000231
Application 14/021,039
CLAIMED SUBJECT MATTER
The claims are directed to a method to possibly reduce malodors
generated by water-soluble cleaning pouches. (Spec. 2,11. 2—3.)3
Claims 1 and 11, reproduced below, are illustrative of the claimed
subject matter:
I. A method of preventing or reducing malodour in the
interior of a packaging container containing at least ten
malodour-generating water-soluble pouches, each of said
pouches comprising:
a. a cleaning composition comprising a first perfume;
and
b. an enveloping film material comprising polyvinyl
alcohol;
said method comprising the steps of: adhering a hot melt
adhesive to an internal wall of the packaging container wherein
the hot melt adhesive comprises a second perfume; wherein
said container comprises a container opening and a hinged lid,
wherein said hinged lid is a separate piece fitted on to said
container opening and said hinged lid is opaque; wherein said
hot melt adhesive has a form of an adhesive strip and is applied
to an internal wall of said container within at least 1 cm of an
edge of said opening; and wherein said adhesive strip is at least
partially hidden from view when said lid is in an open position.
II. A method of preventing or reducing malodour in the
interior of a packaging container containing at least ten
malodour-generating water-soluble pouches, each of said
pouches comprising:
a. a cleaning composition comprising a first perfume;
and
b. an enveloping film material comprising polyvinyl
alcohol;
3 Application 14/021,039, A Method of Reducing Malodor in A Container,
filed September 9, 2013. We refer to the “’039 Specification,” which we
cite as “Spec.”
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Appeal 2016-000231
Application 14/021,039
said method comprising the steps of: adhering a hot melt
adhesive to an internal wall of the packaging container wherein
the hot melt adhesive comprises a second perfume; wherein
said container comprises a container opening and a hinged lid,
wherein said hinged lid is a separate piece fitted on to said
container opening and said hinged lid is opaque; wherein said
hot melt adhesive has a form of an adhesive strip and is applied
to an internal wall of said container within at least 1 cm of an
edge of said opening; and wherein said adhesive strip is
substantially hidden from view when said lid is in an open
position.
(Claims Appendix, App. Br. 5, 6—7 (emphases added).)
REFERENCES
The Examiner relies upon the following references in rejecting the
claims on appeal:
Bitowft
Danneels
Tucker
Hardy
US 6,092,690
US 2002/0009494 A1
US 6,910,599 B2
US 2005/0272624 A1
Jul. 25, 2000
Jan. 24, 2002
Jun. 28, 2005
Dec. 8, 2005
REJECTIONS
Claims 11—20 stand rejected under 35 U.S.C. § 112, second paragraph
as being indefinite. (Final Act. 2; see, e.g., Ans.4 2.)
Claims 1—20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hardy, Danneels, Bitowft, and Tucker. (Final Act. 3; see,
e.g., Ans. 2.)
4 Examiner’s Answer mailed July 22, 2015 (“Ans.”).
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Application 14/021,039
OPINION
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
Indefiniteness Rejection of Claim If
The Examiner rejects claim 11, reasoning that the claim term
“substantially hidden from view” fails to particularly point out and distinctly
claim the subject matter which the patent applicant regards as the invention.
(Final Act. 2.) The Examiner states that the “metes and bounds of this
phrase are not defined in the specification” and finds that the phrase is
subjective. (Id.) Appellant disagrees and argues, without elaboration, that
“one skilled in the art is apprised of the scope of Claims 11—20 in view of
the specification.” (App. Br. 2—3.)
We review the appealed rejections for error based upon the issues
identified by the appealing party and in light of the arguments and evidence
produced thereon. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (“it has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections”)).
In this case, Appellant has not presented an argument explaining why
the Examiner erred in rejecting claim 11 for indefmiteness. Appellant does
not dispute the Examiner’s finding that the phrase is subjective. Appellant
does not explain why those skilled in the art would understand what is
claimed when the claim is read in light of the specification. Appellant’s bare
statement that a skilled artisan “is apprised of the scope” of the claim,
5 Claims 12—20 stand or fall with claim 11 with regard to the indefmiteness
rejection. (App. Br. 2—3.)
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Appeal 2016-000231
Application 14/021,039
without providing evidence or identifying reversible error, is not persuasive
of the patentability of claim 11. See In re Lovin, 652 F.3d 1349, 1357 (Fed.
Cir. 2011) (“[T]he Board [has] reasonably interpreted Rule 41.37 to require
more substantive arguments in an appeal brief than a mere recitation of the
claim elements and a naked assertion that the corresponding elements were
not found in the prior art.”). Appellant has not provided a reason to reverse
the indefiniteness rejection of claim 11.
Obviousness Rejection of Claim 76
Appellant argues that the obviousness rejection is in error because
Danneels fails to teach various claim elements including a “hinged lid
[which] is a separate piece fitted on to [a] container opening,” “an adhesive
strip,” and the “adhesive strip [being] at least partially hidden from view
when said lid is in an open position.” (App. Br. 3—4.) Appellant also argues
that Danneels provides no motivation to combine the cited references. {Id.
at 4.)
From the outset, “[n]on-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references. . . . [The reference] must be read,
not in isolation, but for what it fairly teaches in combination with the prior
art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
In this case, Appellant’s arguments are solely based on Danneels without
addressing the combined teachings of all the cited references.
For example, Appellant does not address the teachings of Bitowft,
Hardy, or Tucker. (See App. Br. 3 4.) Appellant does not dispute the
6 Claims 2—20 stand or fall with claim 1 with regard to the obviousness
rejection. (App. Br. 3—4.)
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Application 14/021,039
Examiner’s finding that Bitowft teaches a container having a lid and a hinge
that connects the lid and the container. (Compare App. Br. 3 with Final Act.
3 (citing relevant portions of Bitowft); see also Ans. 6.) Appellant does not
refute the Examiner’s finding that Hardy teaches a detergent pack having an
adhesive strip. (See Ans. 6.)7 Appellant also does not refute the Examiner’s
finding and analysis that the teachings of Danneels, Hardy as well as Bitowft
would have led a skilled artisan to combine the references to arrive at claim
1. (Compare App. Br. 4 with Final Act. 4—5 (providing reasoning and
analysis to support obviousness); see also Ans. 7—8 (providing the same).)
For example, Appellant provides no arguments as to why the Examiner’s
factual findings relating to motivation to combine are incorrect. (Ans. 7—8.)
Furthermore, the Examiner states that “Appellant does not provide
any technical basis why the ‘resilient material’ of Danneels does not teach or
suggest adhesive material.” (See Ans. 7.) Appellant does not address this
issue nor does Appellant explain why the Examiner reversibly erred in this
aspect of the obviousness analysis.
Appellant also does not address the Examiner’s analysis that the claim
limitation the “adhesive strip is at least partially hidden from view . . .” is
aesthetic or ornamental and cannot show patentable distinction. (Compare
App. Br. 3^4 with Final Act. 4; see also Ans. 8.) Claim recitations relating
to ornamentation only and having no mechanical function cannot be relied
on to distinguish claims in a utility patent application over the prior art. In
re Seid, 161 F.2d 229, 231 (CCPA 1947).
7 No Reply Brief was filed.
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Application 14/021,039
Based on the foregoing, Appellant’s conclusory arguments, without
factual support, do not identify reversible error in the Examiner’s
obviousness analysis.
DECISION
The Examiner’s rejection of claims 11—20 under 35 U.S.C. § 112,
second paragraph is affirmed.
The Examiner’s rejection of claims 1—20 under 35 U.S.C. § 103(a) 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). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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