11500233 (P.T.A.B. Feb. 4, 2015)

Ex Parte Policicchio et al

Patent Trial and Appeal BoardFeb 4, 2015

11500233 (P.T.A.B. Feb. 4, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte NICOLA JOHN POLICICCHIO and ALAN EDWARD SHERRY ____________ Appeal 2012-012193 Application 11/500,233 Technology Center 3700 ____________ Before CHARLES N. GREENHUT, NEIL T. POWELL, and JILL D. HILL, Administrative Patent Judges. HILL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Nicola John Policicchio and Alan Edward Sherry (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1–3, 11, 12, 18, and 22. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER Independent claim 1, reproduced below, represents the claimed subject matter, with the key disputed limitation italicized. Appeal 2012-012193 Application 11/500,233 2 1. A duster pad comprising at least two layers joined in face-to-face relationship, said duster pad comprising: a fibrous layer comprising cellulosic hydrophilic tow fibers capable of contacting a surface to be cleaned, and having at least one free end; at least one cellulosic hydrophilic non-woven layer capable of being attached to a handle, said nonwoven layer having a central axis and a plurality of independently movable strips extending transversely outwardly therefrom in opposite directions; and being joined in face-to face relationship with said fibrous layer; and said duster pad further comprising moisture, so as to be pre-moistened as presented to a user. REJECTIONS I. Claims 1, 12, and 18 stand rejected under 35 U.S.C. § 102(e) as anticipated by Hoadley (US Patent Pub. No. 2006/0171764, pub. Aug. 3, 2006). Ans. 4. II. Claims 2, 3, 11, and 22 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Hoadley. Id. at 5. III. Claims 1–3, 11, 12, 18, and 22 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Tanaka (US Patent No. 6,813,801 B2, iss. Nov. 9, 2004), Keck (US Patent Pub. No. 2003/0106568 A1, pub. June 12, 2003), and Hoadley. Id. at 6. OPINION Rejections I and II — Anticipation/Obviousness based on Hoadley Regarding Rejection I, Appellants argue claims 1, 12, and 18 as a group. Regarding Rejection II, Appellants argue claims 2, 3, 11, and 22 as a group. Appellants present the same argument for both rejections. We select independent claim 1 as representative for both rejections. See 37 C.F.R. § Appeal 2012-012193 Application 11/500,233 3 1.37(c)(1)(vii) (2011). Claims 2, 3, 11, 12, 18, and 22 stand or fall with claim 1. The Examiner finds that Hoadley teaches, among other things, a duster pad that is pre-moistened as presented to a user. Ans. 5 (citing Hoadley para. 150). Appellants acknowledge that Hoadley discloses providing a “pre- moistened cleaning pad 28,” but argue that Hoadley does not teach the point at which the cleaning pad is pre-moistened, such that it is unknown whether the cleaning pad is moistened before it is received by the user. Appeal Br. 5. Appellants contend that “Hoadley’s absence of a teaching as to when the pad is pre-moistened prevents Hoadley from anticipating the appealed claims or rendering these claims obvious.” Id. at 6. The Examiner responds that “pre-moistened,” in the cleaning art, generally means that the pad “already has a cleaning solution in/on it” and that Hoadley’s pre-moistening is disclosed as an alternative to “providing the solution from a distinct reservoir.” Ans. 7. Appellants’ reply that a “suggestion that something ‘generally’ occurs is not a teaching. It is speculation. The Examiner cannot rest an anticipation rejection on speculation as to what ‘generally’ occurs.” Reply Br. 2. Appellants mischaracterize the Examiner’s position. The Examiner’s statement that “pre-moistened” generally means the pad “already has a cleaning solution in/on it” is a statement of what one skilled in the art would understand the term “pre-moistened” to mean, which is not speculation and is appropriate for establishing anticipation and obviousness. Hoadley discloses a cleaning pad with “improved debris adhesion in wet, damp, and dry dusting.” Hoadley para. 3. For wet and damp dusting, Appeal 2012-012193 Application 11/500,233 4 Hoadley employs a cleaning solution as described in paragraphs 144–149. Regarding Hoadley’s statement that “[o]ptionally, for increased convenience, additional compositions can be delivered in the form of a pre- moistened cleaning pad 28” (para. 150), we agree with the Examiner that it teaches the duster pad being pre-moistened when presented to a user. The “increased convenience” mentioned by Hoadley is the pad being moistened before the user receives it. Claim 1 does not recite when the pad is pre- moistened and Appellants have not defined the term “pre-moistened” to be restricted to a particular timing other than before presentation to the user, and we therefore decline to read a timing limitation into claim 1. Appellants also have not argued that one skilled in the art, upon reviewing the disclosure of Hoadley, would not know how to pre-moisten the pad. We therefore are not persuaded by Appellants’ arguments. Rejection III — Obviousness Based on Tanaka, Heck, and Hoadley Appellants argue that the Examiner finds that Tanaka teaches hydrophobic fibers, whereas the claims recite hydrophilic fibers, and that one skilled in the art would recognize that hydrophobic and hydrophilic represent opposite properties. Appeal. Br. 7. The Examiner responds that the rejection included a typographical error, and that cited passage of Tanaka “states that the tow fibers may be of rayon (column 5, line 7), which [is] a cellulosic material known to be absorbent (or hydrophilic).” Appellants provide no reply to the Examiner’s clarification. We discern no error in the Examiner’s findings. For the reasons set forth above, we sustain the Examiner’s rejections. Appeal 2012-012193 Application 11/500,233 5 DECISION We AFFIRM the rejection of claims 1, 12, and 18 under 35 U.S.C. § 102(e) as anticipated by Hoadley. We AFFIRM the rejection of claims 2, 3, 11, and 22 under 35 U.S.C. § 103(a) as unpatentable over Hoadley. We AFFIRM the rejection of claims 1–3, 11, 12, 18, and under 35 U.S.C. § 103(a) as unpatentable over Tanaka, Keck, and Hoadley. 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 hh