Ex Parte Ryan et al

Board of Patent Appeals and Interferences

Dec 15, 2011

11132964 (B.P.A.I. Dec. 15, 2011)

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.
11/132,964 05/19/2005 Terri A. Ryan rta-100-a 7662
79389 7590 12/15/2011
THE WEINTRAUB GROUP, P.L.C.
28580 Orchard Lake Road
Suite 140
Farmington Hills, MI 48334
EXAMINER
PICKETT, JOHN G
ART UNIT PAPER NUMBER
3788
MAIL DATE DELIVERY MODE
12/15/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte TERRI A. RYAN and SEAN P. RYAN
____________

Appeal 2010-000208
Application 11/132,964
Technology Center 3700
____________

Before JENNIFER D. BAHR, KEN B. BARRETT, and
MICHAEL C. ASTORINO, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-000208
Application 11/132,964

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STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 1-8. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We AFFIRM.

THE INVENTION
Claim 1 is the sole independent claim and illustrative of the claims on
appeal. Claim 1 recites:
1. A dentifrice system, comprising:
(a) an elongated carrier strip having a plurality of
containers sequentially spaced therealong, each
container being upwardly open to define an access
thereto and filled with a quantity of dentifrice,
(b) a removable seal emplaced over each container
access, and
(c) wherein each container is dimensioned to
receive the head of a toothbrush inserted
therewithin for accessing and removing the
dentifrice therefrom.

THE REJECTIONS
The following rejections are before us for review:
claims 1, 2, 4, and 5 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Porcelli (US 5,911,319, iss. Jun. 15, 1999)1; and
claims 3, and 6-8 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Porcelli and Weinberg (US 3,126,129, iss. Mar. 24,
1964).

1 Webster (US Des. 60,184, iss. Jan. 3, 1922) is used as extrinsic evidence
in the rejection of claim 1.
Appeal 2010-000208
Application 11/132,964

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OPINION
The rejection of claims 1, 2, 4 and 5 as being anticipated by Porcelli
Claim 1
Porcelli discloses a blister package storing an array of oral hygiene
applicators. The applicators can adhere to a user’s fingertip and function as
a toothbrush. Porcelli, Abstract. Porcelli discloses package 15 includes card
C formed of a plastic transparent film defining an array of six blisters B1-B6
where each blister stores an applicator 10. Porcelli, col. 5, ll. 36-48, fig. 7.
The dimensions of the blister are somewhat larger than applicator 10; the
applicator having a diameter of about ¾ of an inch. Porcelli, col. 4, ll. 43,
44, col. 5, ll. 48-50. The applicators 10 have bristles 12 and a dentifrice
paste 13 embedded in a bulb forming a bristle 12. Porcelli, col. 3, ll. 39-50,
fig. 4.
The Examiner finds Porcelli’s card C, blisters B1-B6, dentifrice paste
13, and metal foil 16 and paper 17 (backing sheet S), correspond to the
“elongated carrier strip”, “plurality of containers”, “quantity of dentifrice”,
and “removable seal”, of claim 1, respectively. Ans. 3-4, Porcelli col. 5, ll.
51-53.
The Appellants contend that Porcelli does not disclose a container that
is upwardly open. Br. 6. The Examiner correctly finds the containers (B1-
B6) are upwardly open when containers (B1-B6) are orientated below the
backing sheets S and backing sheet S is peeled off the containers. See Ans.
5.
The Appellants also contend that Porcelli does not disclose a container
“‘filled with a quantity of dentifrice’ which can ‘receive the head of a
toothbrush inserted therewithin for accessing and removing the dentifrice
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Application 11/132,964

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therefrom.’” Br. 6. Initially, we adopt the Examiner’s findings and analysis
in the Examiner’s Answer at page 6, line 1 through page 7, line 6, explaining
that containers B1-B6 are filled with a quantity of dentifrice 13.
Additionally, the Examiner correctly construes limitation (c) of claim 1,
“wherein each container is dimensioned to receive the head of a toothbrush
inserted therewithin for accessing and removing the dentifrice therefrom”
(italics added), to be directed to the dimensions of the containers (Ans. 7);
and the Examiner correctly finds that Porcelli’s containers (B1-B6) are
capable of receiving the head of a toothbrush.2 Ans. 4-5, 7. The Appellants
do not appear to contend that containers (B1-B6) are not capable of receiving
the head of a toothbrush. The Appellants contend that in use Porcelli’s
backing sheet Y is peeled from blister (container B1) of section X; thus the
dentifrice 13 and applicator 10 are removed from the container. Br. 6.
However this use is not commensurate with the scope of claim 1,
specifically limitation (c).
Thus, the Appellants’ contentions are not persuasive. We sustain the
rejection of claim 1 as being anticipated by Porcelli.
Claim 2
The Examiner finds Porcelli’s foil strip 16 corresponds to “a peel-
away foil strip, wherein removal of the foil strip exposes and enables the
toothbrush to access the dentifrice in the container” as recited in claim 2.
The Appellants contend that the Examiner’s finding is incorrect because
“Porcelli is not capable of ‘enabl[ing] the toothbrush to access the dentifrice

2 The Examiner includes Webster’s toothbrush head as extrinsic evidence
that Porcelli’s containers (B1-B6) are dimensioned to receive the head of a
toothbrush. Ans. 3-4, 7.
Appeal 2010-000208
Application 11/132,964

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in the container.’” Br. 8. The Examiner correctly reasons that “[a]ccess of
the dentifrice is an intended use that Porcelli is fully capable of performing.”
Ans. 8. Once foil strip 16 is peeled away from the blister (container B1), the
interior of the blister (container B1) is exposed and enables a toothbrush to
access the interior of the container. Thus any dentifrice 13 in container B1 is
capable of being accessed and removed. See Ans. 8. As such, the
Appellants’ assertion that once the foil strip 16 is peeled away the applicator
10 (and dentifrice 13) is no longer in container B1 (Br. 6) is not persuasive.
We sustain the rejection of claim 2 as being anticipated by Porcelli.
Claim 4
The Examiner correctly finds Porcelli’s perforations L, T1 & T2
correspond to “said carrier strip has a plurality of lines of perforations that
subdivide the carrier strip into a plurality of segments with each segment
including at least one container, the lines of perforations enabling separation
of any one segment and associated container from the rest of the carrier” as
recited in claim 4. Ans. 4. The Appellants contend against this finding by
asserting “backing sheet[s] cannot be separated from the blister pocket until
the perforated section has been removed from the strip.” Br. 10. The
Appellants’ contention is not commensurate with the scope of the claim. See
Ans. 8. We sustain the rejection of claim 4 as being anticipated by Porcelli.
Claim 5
The Examiner correctly finds Porcelli’s containers “may be separated
along lines T1 and T2 without separation of line L and therefore cooperate to
define two containers in a segment” (Ans. 9), which corresponds to “the
lines of perforations cooperating to define two containers within a given
segment and form a detachable set for appropriate brushing day and night”
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Application 11/132,964

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as recited in claim 5. The Appellants’ contention that Porcelli’s line of
perforations L, T1 & T2 create individual cells (Br. 11) is not persuasive
because not all of the perforation lines need to be perforated at the same
time. We sustain the rejection of claim 5 as being anticipated by Porcelli.
The rejection of claims 3 and 6-8 as being unpatentable over Porcelli and
Weinberg
Claim 3, 7, and 8
Claim 3 depends from claim 2, and recites “each peel-away foil strip
is of a different color to indicate a day of the week.” Claim 7 depends from
claim 1, and recites “each container is formed of a translucent plastic, the
plastic being tinted, each tint being of a different color to identify a different
day of the week.” Claim 8 depends from claim 3, and recites “each
container is formed of a translucent plastic, the plastic being tinted, each tint
being of a different color to identify a different day of the week, wherein the
container and the peel off foil associated therewith have the same color.”
The Examiner also finds that neither Porcelli nor Weinberg teach the
specific arrangement of color as recited in claims 3, 7, and 8. See Ans. 4-5,
accord Br. 9-10, 12-14. The Examiner concludes that providing a different
color for Porcelli’s sheet (i.e., foil strip 16) or tinting Porcelli’s compartment
(i.e., containers (B1-B6)) would have been an obvious design choice for one
of ordinary skill in the art. See Ans. 3, 4-5. The Appellants do not appear to
contest this reasoning. The Examiner also reasons a novel and unobvious
functional relationship does not exist between the printed matter (e.g., color)
and the substrate (e.g., foil strip or plastic containers B1-B6). See Ans. 9, In
re Gulack, 703 F.2d 1381, 1386 (Fed. Cir. 1983). The Appellants do not
appear to contest this reasoning either. The remainder of the Appellants’
contentions for claims 3, 7, and 8 are not persuasive. See Br. 9-10, 12-14.
Appeal 2010-000208
Application 11/132,964

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The Examiner’s conclusion of obviousness is supported by rational
underpinning. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
For the reasons provided above we sustain the rejection of claims 3, 7, and 8
as being unpatentable over Porcelli and Weinberg.
Claim 6
The Appellants argue separately for claim 6, but merely rely on its
dependency from independent claim 1. Br. 11-12. As we sustain the
rejection of claim 1, we also sustain the rejection of claim 6.

DECISION
We AFFIRM the Examiner’s decision finally rejecting claims 1-8.
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

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