Ex Parte Meisel

Patent Trial and Appeal Board

Sep 6, 2018

14088699 (P.T.A.B. Sep. 6, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/088,699 11/25/2013
23556 7590 09/10/2018
KIMBERLY-CLARK WORLDWIDE, INC.
Patent Docketing
2300 Winchester Rd.
NEENAH, WI 54956
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Terri Lynn Meisel
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
64885691 USOl 4820
EXAMINER
NEWHOUSE, NATHAN JEFFREY
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
09/10/2018 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):
Kimberlyclark. docketing@kcc.com
Cindy.M.Trudell@kcc.com
Tisha.Sutherland@kcc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TERRI LYNN MEISEL 1
Appeal 2017-003 813
Application 14/088,699
Technology Center 3700
Before JOHN C. KERINS, WILLIAM A. CAPP, and
SEAN P. O'HANLON, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Terri Lynn Meisel ("Appellant") appeals under 35 U.S.C. § 134(a)
from a final rejection of claims 7-20. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We REVERSE.
1 Kimberly-Clark Worldwide, Inc., is the real party in interest.
Appeal2017-003813
Application 14/088,699
THE INVENTION
Appellant's invention is directed to a refill container for use in a wipes
dispensing system. Claim 7, reproduced below, is illustrative:
7. A refill container having a height dimension, the container
compnsmg:
a bottom wall;
a first side wall and a second side wall contiguous with the
bottom wall and extending in the height dimension;
an exterior surface;
an interior surface;
an access openmg;
a plurality of articles stacked in the height dimension;
a first graduated scale disposed on one of the first and the second
side walls, the first graduated scale comprising a first graduation,
wherein the first graduation of the first graduated scale is spaced
a first recommended refill thickness upward from the bottom
wall in the height dimension; and
a second graduated scale disposed on one of the first and the
second side walls, the second graduated scale comprising a first
graduation, wherein the first graduation of the second graduated
scale is spaced a second recommended refill thickness upward
from the bottom wall in the height dimension,
wherein the first recommended refill thickness and the second
recommended refill thickness are different.
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Appeal2017-003813
Application 14/088,699
REJECTIONS
The Examiner rejects:
(i) claims 7-12 under 35 U.S.C. § 103 as being unpatentable over
Dwyer (US 3,367,487, issued Feb. 6, 1968) in view of Chalson (US
6,105,791, issued Aug. 22, 2000); and
(ii) claims 13-20 under 35 U.S.C. § 103 as being unpatentable over
Mueller (US 2011/0042257 Al, published Feb. 24, 2011) in view of Dwyer
and Chalson.
ANALYSIS
Claims 7-12 -- 35 US.C. § 103 -- Dwyer/Chalson
The Examiner finds that Dwyer discloses all limitations set forth in
claim 7, with the exception that the scales that may be disposed on both side
walls at the opening of the container are to be two different graduated scales.
Final Act. 2-3. The Examiner acknowledges that the scales disclosed in
Dwyer are to indicate how many sheets of paper remain in that container,
but asserts that it would have been obvious to use those scales as
recommended refill height for articles. Id. at 3. The Examiner cites to
Chalson as disclosing a container having two differing graduated scales used
to measure quantities of articles having different thicknesses, and concludes
that it would have been obvious to modify Dwyer to have two differing
scales, "in order to selectively monitor, based upon article thickness, two or
more separate measures of different articles which may, at different times,
be disposed within the container." Id. at 4. The Examiner points out that
Dwyer discloses that the thickness of copy paper may vary, such that the
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Appeal2017-003813
Application 14/088,699
number of sheets that the container may hold is also variable. Adv. Act. 2;
Ans. 4.
Appellant argues that one of ordinary skill in the art would not be
motivated to include two different graduated scales on a single container that
houses a single type of product having a substantially uniform thickness.
Br. 3. In this respect, we do not agree with the Examiner's finding that
Dwyer contemplates using a given container with paper of two or more
different thicknesses. The Examiner appears to rely on the discussion in
Dwyer of "different ... numbers of sheets" as connoting that, for a given
container, if different numbers of sheets are to be packaged therein, it
follows that one set of sheets will have paper of a different thickness than
another set of sheets. However, the mention of different sizes and numbers
of sheets is discussed relative to the outer dimensions of the carton or
container. Dwyer 3: 13-18 ("[T]he appropriate outer dimensions of the
carton . . . [are] of a size sufficient to hold the stack of sheets snugly ...
[ and fJor different sizes and numbers of sheets the dimensions will vary
accordingly.")
As such, this portion of the underlying premise for modifying Dwyer
in view of Chalson is lacking in rational underpinnings. Further, the manner
of use of the Dwyer carton suggests that it is in the nature of a "single use"
container. Dwyer 2: 16-19 ("[A] bulk package for cut size paper which may
be easily opened and which, when opened, serves as a convenient service
tray."). Dwyer does not contemplate, as far as we can determine, using a
same container to retain articles (copy paper) of two different thicknesses at
different points in time. As this constitutes the articulated reason to modify
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Application 14/088,699
Dwyer to have two differing graduated scales, the reason is also lacking in
rational underpinnings.
Accordingly, the rejection of claim 7 as being unpatentable over
Dwyer and Chalson is not sustained. Claims 8-12 depend from claim 7, and
the rejection of those claims is likewise not sustained.
Claims 13-20 -- 35 US. C. § 103 -- Mueller/Dwyer/Chalson
This rejection is based on the same faulty fact finding and conclusion
as to obviousness as does the rejection discussed above. Final Act. 5---6.
Accordingly, the rejection of claims 13-20 as being unpatentable over
Mueller, Dwyer, and Chalson is not sustained
DECISION
We reverse the rejections of claims 7-20.
REVERSED
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