11128569 (P.T.A.B. Oct. 10, 2012)

Ex Parte Papa et al

Patent Trial and Appeal BoardOct 10, 2012

11128569 (P.T.A.B. Oct. 10, 2012)

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. 11/128,569 05/13/2005 Alyce Johnson Papa 9997 8338 27752 7590 10/10/2012 THE PROCTER & GAMBLE COMPANY Global Legal Department - IP Sycamore Building - 4th Floor 299 East Sixth Street CINCINNATI, OH 45202 EXAMINER LE, HUYEN D ART UNIT PAPER NUMBER 3751 MAIL DATE DELIVERY MODE 10/10/2012 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 ALYCE JOHNSON PAPA, LEE BURROWES, AME BENJAMIN COLMAN and JAMIE TRAFFORD STONE ____________________ Appeal 2010-008784 Application 11/128,569 Technology Center 3700 ____________________ Before LINDA E. HORNER, PATRICK R. SCANLON, and BRADFORD E. KILE, Administrative Patent Judges. SCANLON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-008784 Application 11/128,569 2 STATEMENT OF THE CASE Alyce Johnson Papa et al. (Appellants) seek our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1 and 4-6, which are all the claims remaining of record, claims 2, 3 and 7-20 having been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE CLAIMED SUBJECT MATTER The claimed subject matter relates to an oral hygiene product dispenser. Spec. 1, ll. 9-10. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. An oral hygiene product dispenser comprising: a housing for storing an oral hygiene product; a base for vertically supporting said housing; an orifice through which the oral hygiene product is dispensed, said orifice being substantially fixed in location wherein said orifice is integral with said base; a dosing cylinder in fluid communication with said oral hygiene product and said orifice; and an activator for selectively advancing the oral hygiene product from said housing to said orifice through said dosing cylinder wherein said activator applies is adapted for reciprocating vertical motion and wherein a downward motion of said actuator results in a discharge of said oral hygiene product through said orifice. Appeal 2010-008784 Application 11/128,569 3 THE REJECTIONS Appellants seek review of the following rejections: The rejection of claim 1 under 35 U.S.C. § 102(b) as being anticipated by Lehmkuhl (US 5,842,605, iss. Dec. 1, 1998). The rejection of claims 4-6 under 35 U.S.C. § 103(a) as being unpatentable over Lehmkuhl. ANALYSIS Rejection of claim 1 as being anticipated by Lehmkuhl Appellants argue that Lehmkuhl does not teach or suggest the claim 1 features of “an orifice through which the oral hygiene product is dispensed, said orifice being substantially fixed in location wherein said orifice is integral with said base” and “an activator for selectively advancing the oral hygiene product from said housing to said orifice through said dosing cylinder.” App. Br. 4-5. However, the Examiner points to Figure 8 of Lehmkuhl as showing a dispenser having a base 50 and a spout that includes an orifice.1 Ans. 3. Furthermore, the Examiner finds that the dispenser of Figure 8 can have various dispenser mechanisms including a so-called “type 2” dispenser as shown in Figure 12 of Lehmkuhl. Ans. 3-4. The Examiner also finds that the spout is part of the base 50. Ans. 4. 1 We note that in some portions of the Examiner’s Answer the Examiner appears to refer to Figures 8-10 as showing a single embodiment of a dispenser (Ans. 3) when Figure 8 and Figure 10 actually show two distinct embodiments. However, the Examiner also refers to the Figure 8 embodiment separately (Ans. 4), and, for the reasons discussed infra, we determine that claim 1 is anticipated by the Figure 8 embodiment taken alone. Appeal 2010-008784 Application 11/128,569 4 We agree with the Examiner’s findings. The dispenser of Figure 8 includes a dispenser body or base 50 supporting a container 51 and a cover or housing 56. Lehmkuhl, col. 10, ll. 19-20, 29-30. The dispenser is compatible with the type 1, type 2, type 3 and type 4 dispenser mechanisms. Lehmkuhl, col. 10, ll. 20-23. Figure 8 shows that the support structure of the dispenser mechanism is part of the base 50. The type 2 dispenser mechanism shown in Figure 12 comprises a body 70 supporting a non- moving (i.e., fixed) spout 71 and a plunger 73. Lehmkuhl, col. 10, ll. 54-63; col. 11, l. 9; Fig. 12. Lehmkuhl discloses that “[s]pout 71 may be a separate part or be integral with body 70.” Lehmkuhl, col. 10, ll. 62-63. Depressing the plunger 73 causes a piston 78 to move into a pressure chamber 96 defined by the body 70, thereby forcing product from the pressure chamber 96 to be dispensed through the spout 71. Lehmkuhl, col. 11, ll. 8-24. When the dispenser of Figure 8 is provided with a type 2 mechanism as disclosed, the body 70 will be part of the base 50. The outlet of the spout 71 is an orifice through which oral hygiene product is dispensed. This orifice is substantially fixed in location because the spout 71 is fixed. Because the spout 71 may be integral with the body 70, the orifice is also integral with the base 50. In addition, the plunger 73 is an activator for selectively advancing oral hygiene product from the housing 56 to the orifice through a dosing cylinder (i.e., the pressure chamber 96). For these reasons, Appellants’ arguments do not apprise us of error in the Examiner’s rejection. We determine that the preponderance of the evidence weighs in favor of the Examiner’s position and accordingly sustain the rejection of claim 1 under 35 U.S.C. § 102(b) as being anticipated by Lehmkuhl. Appeal 2010-008784 Application 11/128,569 5 Rejection of claims 4-6 Appellants rely solely on their dependence from independent claim 1 as imparting patentability to claims 4-6. App. Br. 5. Thus, for the reasons set forth above in our analysis of the rejection of claim 1, the rejection of claims 4-6 is sustained. DECISION The Examiner’s rejection of claim 1 under 35 U.S.C. § 102(b) as being anticipated by Lehmkuhl is affirmed. The Examiner’s rejection of claims 4-6 under 35 U.S.C. § 103(a) as being unpatentable over Lehmkuhl 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)(1)(iv). AFFIRMED mls