Ex Parte MeiselDownload PDFPatent Trial and Appeal BoardSep 6, 201814088699 (P.T.A.B. Sep. 6, 2018) Copy Citation 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. 2 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 3 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 4 Appeal2017-003813 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 5 Copy with citationCopy as parenthetical citation