Ex parte Simhaee

Board of Patent Appeals and Interferences

Mar 27, 2002

09076356 (B.P.A.I. Mar. 27, 2002)

1
The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 26
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte EBRAHIM SIMHAEE
___________
Appeal No. 2002-0358
Application No. 09/076,356
__________
ON BRIEF
__________
Before COHEN, STAAB, and McQUADE, Administrative Patent
Judges.
McQUADE, Administrative Patent Judge.
DECISION ON APPEAL
Ebrahim Simhaee appeals from the final rejection (Paper
No. 18) of claims 1 through 3, all of the claims pending in
the application.
THE INVENTION
The invention relates to a plastic bag dispenser which is
defined in representative claim 1 as follows:
1. A dispenser for dispensing plastic bags wound in a
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Application No. 09/076,356
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roll on a hollow cylindrical core, comprising
a one piece, integral molded plastic body having a bottom
panel, sidewalls extending upwardly from said bottom panel,
and means for separating individual bags from said roll,
wherein said sidewalls converge from said bottom panel so as
to apply a braking force to a core supported between said
sidewalls, said sidewalls each including an inner stub axle
for receiving an end of said hollow cylindrical core, the
diameters of the stub axles relative to the inner diameter of
the core being such that the core can rotate on the axles but
its rotation is retarded by friction between the inner surface
of said core and the stub axles.
THE PRIOR ART
The references relied on by the examiner to support the
final rejection are:
Adams 3,799,466 Mar. 26,
1974
Anderson 4,771,966 Sep. 20,
1988
Kannankeril et al.(Kannankeril) 5,813,585 Sep. 29,
1998
THE REJECTIONS
Claims 1 and 2 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Kannankeril in view of Adams.
Claim 3 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kannankeril in view of Adams and Anderson.
Attention is directed to the appellant’s main and reply
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briefs (Paper Nos. 21 and 25) and to the examiner’s answer
(Paper No. 22) for the respective positions of the appellant
and the examiner with regard to the merits of these
rejections.
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DISCUSSION
Kannankeril, the examiner’s primary reference, discloses
“a dispensing apparatus adapted for serially dispensing
plastic bags from wound rolls” (column 1, lines 12 and 13).
As described by Kannankeril with reference to Figures 1 and 2,
[t]he apparatus 10 includes a container, generally
indicated at 12 and a mounting bracket, generally
indicated at 22.
The container 12 has a unitary construction
formed from a pair of opposed sides 14, a pair of
flanges 16 extending generally transverse to the
sides, a bottom 18 positioned below the sides,
providing support therefor and a separating means or
tongue 20 extending outwardly from the bottom 18.
The container 12 is adapted to receive a wound roll
of plastic bags AA [column 4, lines 31 through 40].
The bracket 22 allows the container 12 to be mounted in
the same desired orientation in a plurality of different
environments (see Figures 6 through 11). Of this orientation,
Kannankeril teaches that
the desired orientation of the container 12 is such
that the wound roll, regardless of its size . . . is
biased against the flanges 16 and the bottom 18.
Preferably, the container 12 is oriented
approximately 45E form horizontal. In this
orientation, the juncture of the bottom 16 and the
opposed sides 14, which are joined at an angle
approaching 90E, form the lower most point of the
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container 12. It is the combination of this
orientation of the container 12 and the connection
of the bottom 18 and the sides 14 which encourages
self-braking of the wound roll and [discourages] or
limits the wound roll from overspinning or moving
away from the flanges 16 and the bottom 18 as the
wound roll unwinds due to advancement of the plastic
bags AA out of the container 12. . . . In
practice, the orientation of the container 12 and
the configuration of the flanges 16 and the downward
orientation of the separating means 20 creates a
pinching effect on the wound roll to prevent it from
over-spinning regardless of the size of the roll
[column 5, lines 30 through 49].
Kannankeril also indicates that while the roll of plastic
bags need not be mounted on an axle, if desired an axle may be
provided within the container 12 to rotationally support the
roll (see column 6, lines 50 through 58).
As conceded by the examiner (see pages 3 and 4 in the
answer), Kannankeril fails to respond to the limitations in
representative claim 1 requiring the sidewalls (1) to converge
from the bottom panel so as to apply a braking force to a
core, and (2) to each include an inner stub axle for receiving
an end of the core. To overcome these deficiencies, the
examiner turns to Adams.
Adams discloses a ribbon/tape dispenser 1 comprising a U-
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shaped yoke 2 and an attachment support clip 3. The yoke,
which is made of spring sheet metal, includes a back 6, sides
4 and 5 extending from the back so as to be resiliently biased
or converged toward one another (see Figure 1), and bosses 7
and 8 disposed on the sides for rotatably engaging the ends of
a roll. The inward bias of the sides applies a restraining
force to the roll which prevents unintentional unwinding.
In proposing to combine Kannankeril and Adams to reject
claim 1, the examiner concludes that it would have been
obvious to modify the dispenser disclosed by Kannankeril “by
making the sidewalls converge and [making] the axle into
opposed axle stubs, in order to provide a frictional restraint
on the stored material . . . and/or to provide easy removal of
the material roll as taught by Adams” (answer, pages 3 and 4).
The examiner does not explain, however, nor is it evident, why
a person having ordinary skill in the art would find it
desirable to increase the frictional restraint capability
already embodied in the Kannankeril dispenser. Too much
frictional restraint would be counterproductive since it would
unduly hinder rotation of the roll. Similarly, the addition
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of stub axles to the Kannankeril dispenser ostensibly would
hamper, rather than facilitate, removal of the roll.
Furthermore, and as pointed out by the appellant, the proposed
modification of the Kannankeril dispenser in view of Adams
would destroy the self-braking characteristic sought by
Kannankeril. In light of the foregoing, it is evident that
the only suggestion for combining Kannankeril and Adams in the
manner advanced by the examiner stems from hindsight knowledge
impermissibly derived from the appellant’s disclosure.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103(a) rejection of claim 1, and claim 2 which depends
therefrom, as being unpatentable over Kannankeril in view of
Adams.
As Anderson’s disclosure of a paper towel dispenser
having an adhesive mounting component does not cure the above
noted shortcomings of the Kannankeril-Adams combination, we
also shall not sustain the standing 35 U.S.C. § 103(a)
rejection of claim 3, which depends from claim 1, as being
unpatentable over Kannankeril in view of Adams and Anderson.
As a final matter, upon return of the application to the
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technology center, the examiner should consider whether U.S.
Patent No. Des. 409,027, granted to the appellant on May 4,
1999, raises an obviousness-type double patenting issue with
respect to the subject matter claimed in the instant
application.
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SUMMARY
The decision of the examiner to reject claims 1 through 3
is reversed.
REVERSED
)
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JOHN P. McQUADE )
Administrative Patent Judge )
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Application No. 09/076,356
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