Ex Parte Kramer et alDownload PDFPatent Trial and Appeal BoardMay 29, 201513137163 (P.T.A.B. May. 29, 2015) Copy Citation 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. 13/137,163 07/25/2011 Bruce Elliot Kramer SOAP2 3572 7590 05/29/2015 BRUCE ELLIOT KRAMER 9112 CHERBOURG DR. POTOMAC, MD 20854 EXAMINER OGDEN JR, NECHOLUS ART UNIT PAPER NUMBER 1761 MAIL DATE DELIVERY MODE 05/29/2015 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 PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BRUCE ELLIOT KRAMER and JOY ELIZABETH BELIN ____________ Appeal 2013-006446 Application 13/137,163 Technology Center 1700 ____________ Before CHUNG K. PAK, MICHAEL P. COLAIANNI, and MICHELLE N. ANKENBRAND, Administrative Patent Judges. ANKENBRAND, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1–15. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. The Invention Appellants’ invention relates to a cleansing bar having a plurality of opaque colored layers. Spec. 1. Claim 1, the sole independent claim, is 1 Appellants identify the inventors, Bruce Elliot Kramer and Joy Elizabeth Belin, as the real parties in interest. App. Br. 2. Appeal 2013-006446 Application 13/137,163 2 representative of the claims on appeal, and is reproduced below from the Claims Appendix to the Appeal Brief: 1. A multicolored cleansing bar comprising a cleansing material, wherein the cleansing bar comprises an outside layer and at least one inside layer, wherein the outside layer is a different color from at least one inside layer, wherein the outside layer surrounds the at least one inside layer, wherein the layers are opaque. The References Bartley US 4,081,394 Mar. 28, 1978 Sonnenberg US 6,673,756 B2 Jan. 6, 2004 The Rejection Claims 1–15 are rejected under 35 U.S.C. § 103(a) as unpatentable over Bartley in view of Sonnenberg. OPINION We affirm the rejection of claims 1–15 under 35 U.S.C. § 103(a). Appellants argue the claims on appeal as one group. See App. Br. 6–10. We, therefore, limit our discussion to claim 1, which is representative of the claims on appeal, and claims 2–15 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (2013). The Examiner finds that Bartley discloses a soap bar comprising an outer shell, an intermediate shell, and an inner core. Final Action (March 28, 2012) 2 (citing Bartley abstract). The Examiner further finds Bartley discloses that the outer shell surrounds the intermediate shell and the Appeal 2013-006446 Application 13/137,163 3 intermediate shell surrounds the inner core. Id.; see Bartley Fig. 2 and claim 1. The Examiner finds that Sonnenberg discloses a soap comprising two or more phases that can be transparent or opaque and colored. Final Action 2 (citing Sonnenberg 26:31–35). Sonnenberg further discloses that “it is possible to prepare a very wide variety of combinations [of phases].” Sonnenberg 26:31–35. The Examiner concludes that it would have been obvious to include different colors or dyes within each layer of Bartley’s soap based on Sonnenberg’s teaching that colored layers provide aesthetic appeal. Final Action 2. Appellants do not challenge the Examiner’s factual findings concerning the disclosures of Bartley and Sonnenberg. Rather, Appellants argue that a skilled artisan would not have been motivated by Sonnenberg to make Bartley’s layers different colors because Sonnenberg discloses that the different colored phases are aesthetically pleasing when visible at the same time, and the colored layers would not be visible at the same time when Bartley’s layers are opaque. App. Br. 7–9; Reply Br. 4. Thus, argue Appellants, making Bartley’s layers different colors would not provide the same aesthetic appeal (i.e., seeing the different colors at the same time) disclosed by Sonnenberg. App. Br. 7–8. Appellants’ argument does not persuade us of reversible error in the Examiner’s rejection. One cannot show nonobviousness by attacking the references individually where a rejection is based on a combination of references. In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“[T]he test [for obviousness] is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”). Here, Appellants attack Appeal 2013-006446 Application 13/137,163 4 Sonnenberg individually instead of focusing on the disclosure of the prior art as a whole. Focusing on the prior art as a whole, Sonnenberg’s disclosure that it is possible to prepare a wide variety of combinations of phases or layers of a soap that can be colored and opaque, Sonnenberg 26:31–35, combined with Bartley’s disclosure of soap comprising surrounded layers, Bartley abstract, would have led one of ordinary skill in the art, through no more than ordinary creativity, to incorporate colors into each layer of Bartley’s soap to achieve a cleansing bar having the desired aesthetic appearance (i.e., a colored layer surrounded by a different colored layer). Ans. 5–6; KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“[T]he [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.”). It is of no moment that the desired aesthetic appearance of the Bartley/Sonnenberg combination differs from the aesthetic appearance disclosed in Sonnenberg because, as the Supreme Court has observed, “[c]ommon sense teaches . . . that familiar items may have obvious uses beyond their primary purposes, and in many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle.” KSR, 550 U.S. at 420. Accordingly, we affirm the rejection of claims 1–15 under 35 U.S.C. § 103(a). Appeal 2013-006446 Application 13/137,163 5 DECISION/ORDER The Examiner’s rejection of claims 1–15 under 35 U.S.C. § 103(a) is affirmed. It is ordered that the Examiner’s decision 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)(1)(iv). AFFIRMED cdc Copy with citationCopy as parenthetical citation