Ex Parte Slayton et al

Patent Trial and Appeal Board

Jan 4, 2017

13013931 (P.T.A.B. Jan. 4, 2017)

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.
13/013,931 01/26/2011 Nancy Deters SLAYTON 11594 9654
27752 7590 01/06/2017
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
LEE, JOSHUA S
ART UNIT PAPER NUMBER
3764
NOTIFICATION DATE DELIVERY MODE
01/06/2017 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):
centraldocket. im @ pg. com
pair_pg @ firsttofile. com
mayer.jk @ pg. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NANCY DETERS SLAYTON, ERIC MITCHELL SCHICKLI,
DAVID ANDREW DALTON, and REGINALD EDWARD CRUTCHER II
Appeal 2015-003939
Application 13/013,931
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
TIMOTHY G. MAJORS, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL1
This Appeal under 35 U.S.C. § 134 involves claims 21 and 24 (Br. 2).
Examiner entered a rejection under 35 U.S.C. § 102(b).2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify “[t]he real party in interest [as] The Procter & Gamble
Company of Cincinnati, Ohio” (Br. 1).
2 We recognize Appellants’ request that “the claim objection^ of record,] be
held in abeyance until a decision by the Board of Appeals is provided” (Br.
4). We note, however, that this is a petitionable matter not properly before
this Panel on appeal. See Manual of Patent Examining Procedure § 1201.
Appeal 2015-003939
Application 13/013,931
STATEMENT OF THE CASE
Appellants’ “invention relates to an improved applicator for feminine
hygiene devices, and more particularly, to an improved applicator for
feminine hygiene devices having improved surface elements” (Spec. 1:8—
10). Independent claim 21 is representative and reproduced below:
21. An applicator for a feminine hygiene device comprising:
an insertion member;
the insertion member having an outer surface, an insertion end
comprising a petal region, a withdrawal end opposite the
insertion end, and a barrel region adapted to house the feminine
hygiene device, the insertion member having a grip region;
the grip region comprising one or more three-dimensional
surface elements protruding from the grip region; and
the barrel region comprising one or more two-dimensional
surface elements, wherein the one or more two-dimensional
surface elements are etched into the outer surface and have a
matte finish appearance relative to barrel region areas
surrounding the one or more two-dimensional surface elements,
and wherein the one or more two-dimensional surf ace elements
do not extend into the petal region.
(Br. 6.)
The claims stand rejected as follows:
Claims 21 and 24 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Cole.3
3 Cole et al., US 6,019,743, issued Feb. 1, 2000.
2
Appeal 2015-003939
Application 13/013,931
ISSUE
Does the preponderance of evidence relied upon by Examiner support
Examiner’s finding that Cole teaches Appellants’ claimed invention?
FACTUAL FINDINGS
We adopt Examiner’s findings concerning the scope and content of
the prior art (Ans. 2—6).
ANALYSIS
Upon consideration of the evidence on this record and each of
Appellants’ contentions, we find that the preponderance of evidence on this
record supports Examiner’s conclusion that the subject matter of
Appellants’ claim 21 is anticipated by Cole. Accordingly, we sustain
Examiner’s rejection of claim 21 for the reasons set forth in the Answer,
which we incorporate herein by reference.
We provide the following for emphasis only. Appellants’ contentions
regarding the flexibility of Cole’s device are not persuasive, because
Appellants’ claims do not limit the flexibility of the device (see Ans. 5; cf
Br. 3—4). See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“[Ajppellant’s
arguments fail from the outset because . . . they are not based on limitations
appearing in the claims.”).
3
Appeal 2015-003939
Application 13/013,931
CONCLUSION OF LAW
The rejection of claim 21 under 35 U.S.C. § 102(b) as being
anticipated by Cole is affirmed. Claim 24 is not separately argued and falls
with claim 21.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
4