Sara McCamy

Patent Trials and Appeals Board

Jul 1, 2021

2021000294 (P.T.A.B. Jul. 1, 2021)

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.
16/131,265 09/14/2018 Sara Maria McCamy AMK-6681-3 3097
23117 7590 07/01/2021
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
ROS, NICHOLAS A
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
07/01/2021 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SARAH MARIA McCAMY
____________

Appeal 2021-000294
Application 16/131,265
Technology Center 3700
____________

Before EDWARD A. BROWN, WILLIAM A. CAPP, and
JAMES A. WORTH, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s
decision rejecting claims 1–3, 5–13, and 15.2 We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Sara Maria McCamy as the real party in
interest. Appeal Br. 3.
2 Claims 4 and 14 are cancelled. Appeal Br. 13–14 (Claims App.).
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CLAIMS
Appellant’s disclosure “relates to a portable sitz bath and, more
particularly, to a collapsible bath container adapted for mounting on the top
ledge of a toilet bowl.” Spec. ¶ 3. Claims 1 and 13 are independent. Claim
1, reproduced below, illustrates the claimed subject matter.
1. A bath container comprising:
an outer ledge; and
a holding section coupled with the outer ledge, the
holding section defining a volume for containing a fluid,
wherein the holding section is formed of a flexible material so
as to be collapsible, wherein the holding section is sized to fit
within a toilet bowl opening, and wherein the outer ledge
extends peripherally outward from the holding section and is
sized larger than the toilet bowl opening.
Appeal Br. 13 (Claims App.).

REJECTIONS
The following rejections, all under 35 U.S.C. § 103, are before us on
appeal:
claims 1–3, 5, 8, and 12 as being unpatentable over Stolbach (US
3,490,079, issued Jan. 20, 1970) and Tsang (US 2017/0202736 A1,
published July 20, 2017);
claims 6 and 7 as being unpatentable over Stolbach, Tsang, and Heath
(US 2009/0217449 A1, published Sept. 3, 2009);
claims 9 and 10 as being unpatentable over Stolbach, Tsang, and
Anderson (US 4,764,997, issued Aug. 23, 1988); and
claims 11, 13, and 15 are rejected under 35 U.S.C. § 103 as being
unpatentable over Stolbach, Tsang, Anderson, and Reda (US D700,685 S,
issued Mar. 4, 2014).
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ANALYSIS
Claims 1–3, 5, 8, and 12 Over Stolbach and Tsang
Claims 1, 5, and 8
As for claim 1, the Examiner finds that Stolbach discloses a bath
container comprising an outer ledge (mounting flange 14) and a holding
section (body portion or basin 12). Final Act. 5 (citing Stolbach, Figs. 1, 3,
6). The Examiner concedes that Stolbach does not disclose that the holding
section is flexible and collapsible, as called for by claim 1. Id. at 6. To
address this omission, the Examiner relies on Tsang as teaching a portable
bath container (footbath 10) comprising a holding section (sidewall 18)
constructed of a flexible material to be collapsible and including score lines
(folds 30, 32) defining telescoping segments that collapse concentrically into
each other. Id. (citing Tsang ¶¶ 17–19, Figs. 1–5). The Examiner concludes
that it would have been obvious to one of ordinary skill in the art to make
the holding section of Stolbach collapsible through a plurality of score lines
defining telescoping segments, as taught by Tsang, to permit the bath
container to be stored in a more compact configuration. Id.
Appellant disagrees that it would have been obvious to make
Stolbach’s holding section collapsible in view of Tsang. Appeal Br. 7.
First, Appellant notes that claim 1 recites that “the holding section is formed
of a flexible material so as to be collapsible,” whereas “Stolbach describes
that its bidet is made in a unitary form and is molded of a rigid plastic.” Id.
at 8. Appellant notes that, in Stolbach, rear wall 22 of bidet 10 is formed
with drainage channel 30 for draining the bidet. Id. Appellant submits that
the rigid material of the bidet enables the structure to achieve its intended
functionality in regard to drainage. Id. Thus, Appellant contends, persons
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of ordinary skill in the art would not have modified Stolbach’s structure into
a collapsible configuration because collapsible material would hinder the
functionality of channel 30 and wall 32. Id. In fact, Appellant contends,
“channel 30 and wall 32 could not exist with a collapsible configuration.”
Id. at 7–8. Appellant further submits that channel 30 and wall 32 form a
block structure that adds rigidity to the bidet (id. at 8), and the proposed
modification would also defeat this functionality (id. at 9). According to
Appellant, it would be beyond the skill level of one of ordinary skill in the
art to incorporate the block structure with a collapsible configuration (id. at
8), as the proposed modification “would in fact require substantial
engineering input in order to enable some form of collapsible construction
while still including such a channel” (id. at 9).
The Examiner disagrees that the side walls in Stolbach’s bidet must be
rigid to form a drainage channel. Ans. 9. The Examiner submits that
“Stolbach does not discuss a need for a specific material or rigidity of the
basin sidewalls for the formation of a drainage channel, instead merely
stating that the basin in its entirety being molded from a rigid plastic as
being ‘preferable.’” Id. And, the Examiner submits, “Tsang utilizes more
modern materials to form a basin with collapsible sidewalls which are
flexible enough to collapse however they also sufficiently rigid when
extended/deployed to support itself.” Id.
In reply, Appellant disagrees that “the Tsang material must be
sufficiently rigid to maintain the intended functionality of the Stolbach
structure.” Reply Br. 1. Appellant further contends:
In paragraph [0018], Tsang describes that the distal end
region 24 or the lip 26 is formed from a substantially rigid
material, while the central region 28 or intermediate range of
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the side wall 18 is formed from a flexible material, thereby
providing for both structural support and movability of the side
wall 18. Only the distal end region and/or the proximal end
region of the side wall 18 is described as potentially being
formed from molded plastic. The use of mixed materials in
Tsang would further lead those of ordinary skill in the art away
from the modifications proposed by the Examiner.
Id. at 2–3 (emphasis added).
These contentions are unpersuasive. Tsang further states:
The intermediate region 28 is formed from a plastic, silicone, or
rubber material that provides for a flexible structure, for
example, via an injection molding or forming process, and in
one example is formed from a thermoplastic polyurethane. In
some examples, the distal end region 24 and/or the proximal
end region 22 may also be formed from the same material as
the intermediate region 28 of the side wall 18.
Tsang ¶ 18 (boldface omitted, emphasis added). Paragraph 18 indicates that
intermediate region 28 is formed of a material (e.g., plastic) that “provides
for a flexible structure,” and, like distal end region 24 and proximal
region 22, can be formed “via an injection molding process.” Id.
Paragraph 18 also indicates that distal end region 24 and/or proximal end
region 22 can be formed of the same material as intermediate region 28. As
such, paragraph 18 teaches that Tsang is not limited to “[t]he use of mixed
materials.” Thus, we disagree with Appellant’s characterization of Tsang’s
description in paragraph 18 as it pertains to the use of molding processes and
the choice of materials suitable for forming the apparatus.
In the Reply Brief, Appellant maintains that “those of ordinary skill in
the art would readily appreciate the structural difficulties and engineering
challenges required to modify the Stolbach structure to be collapsible . . .
[and ] would similarly recognize that the block passage that forms the
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drainage channel would add rigidity to the Stolbach structure.” Reply Br. 2.
The Examiner notes, however, that Appellant does not identify any
description in Stolbach that indicates the drainage channel provides such
rigidity to the overall structure. Ans. 9–10. Moreover, even if the drainage
channel does add rigidity to Stolbach’s bidet, Appellant provides no
technical evidence or persuasive reasoning that this is required for the bidet
to function. Nor does Appellant provide any technical evidence or
persuasive reasoning showing that Stolbach’s bidet, as modified to comprise
a collapsible holding section, would lack sufficient structural integrity to
contain liquid, and also allow the liquid to be discharged from its basin. In
light of Tsang’s teachings in regard to suitable forming processes and
materials, we are unpersuaded that the Examiner’s proposed modification of
Stolbach in view of Tsang would lack at least a reasonable expectation of
success. See In re Clinton, 527 F.2d 1226, 1228 (CCPA 1976)
(“Obviousness does not require absolute predictability, but a reasonable
expectation of success is necessary.”).
As for Appellant’s contention that the proposed modification of
Stolbach’s bidet would require “structural difficulties and engineering
challenges” in view of Tsang’s teachings regarding the formation of flexible,
collapsible structures, Appellant does not explain persuasively why one of
ordinary skill in the art would have lacked the requisite skill to form the
basin of Stolbach’s bidet of “a flexible material so as to be collapsible,” as
claimed. Nor does Appellant explain persuasively why a skilled artisan
would have lacked the requisite skill to provide a drainage channel, in
particular, in the modified structure. As Appellant does not direct us to any
evidence of record that persuasively supports this contention, this argument
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lacks sufficient evidentiary support. See Becton, Dickinson & Co. v. Tyco
Healthcare Grp., LP, 616 F.3d 1249, 1260 (Fed. Cir. 2010) (“Unsupported
attorney argument . . . is an inadequate substitute for record evidence.”).
Second, Appellant notes that Stolbach describes the bidet as a
“compact, lightweight, inexpensive device.” Appeal Br. 8 (citing Stolbach,
col. 4, ll. 1–7). Appellant submits that, in this context, “Stolbach would not
lead those of ordinary skill in the art to further compact the device.” Id.
This contention is unpersuasive. In response, the Examiner states,
“[a]s a stated purpose of Stolbach is to provide a lightweight and compact
device an ordinary artisan would recognize that utilizing different, or more
modern/new materials, to make the device lighter and more compact would
be a desirable improvement.” Ans. 10. We agree with the Examiner that the
proposed modification of Stolbach’s device is not in conflict with, but rather,
is consistent with Stolbach’s teaching of making the device compact and
lightweight.
Thus, as Appellant does not apprise us of Examiner error, we sustain
the rejection of claim 1, and claims 5 and 8 depending therefrom and which
are not separately argued, as unpatentable over Stolbach and Tsang.
Claims 2 and 3
Claim 2 depends from claim 1 and recites that “the holding section
comprises a score line across which the holding section is collapsible on
itself,” and claim 3 depends from claim 2 and calls for “a plurality of score
lines defining a corresponding plurality of telescoping segments that
collapse concentrically into each other.” Appeal Br. 13 (Claims App.). As
discussed above, the Examiner relies on Tsang as teaching score lines. Final
Act. 6. Appellant contends, however, that Stolbach teaches away from the
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use of score lines in view of its rigid plastic structure and incorporation of a
drainage channel. Appeal Br. 9.
“A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.” In re Urbanski, 809 F.3d 1237,
1244 (Fed. Cir. 2016) (citation omitted). “A reference does not teach away,
however, if it merely expresses a general preference for an alternative
invention but does not criticize, discredit, or otherwise discourage
investigation into the invention claimed.” See Galderma Labs v. Tolmar,
Inc., 737 F.3d 731, 738 (Fed. Cir. 2013). Here, Stolbach discloses that bidet
10 is “preferably . . . molded of a rigid plastic.” See Stolbach, col. 2, ll. 29–
32. This disclosure merely expresses a general preference for using a rigid
plastic, but does not explicitly criticize, discredit, or otherwise discourage
using “a flexible material so as to be collapsible.” Hence, we are
unpersuaded that Stolbach teaches away from the proposed modification.
Thus, we sustain the rejection of claims 2 and 3 as unpatentable over
Stolbach and Tsang.
Claim 12
Claim 12 depends from claim 1 and recites that “the holding section is
configurable between a collapsed configuration and an expanded
configuration, and wherein in the collapsed configuration, a depth of the
bath container is at least 75% smaller than in the expanded configuration.”
Appeal Br. 13 (Claims App.) (emphasis added). The Examiner finds that the
proposed combination teaches a bath container with a holding section that is
configurable between a collapsed configuration and an expanded
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configuration. Final Act. 6. The Examiner concedes that Tsang does not
describe “the volume change” between the collapsed and expanded
configurations, but submits that Figures 1 and 3–5 of Tsang illustrate that the
depth of the bath in the collapsed configuration is at least 75% smaller than
in the expanded configuration. Id.
Additionally, the Examiner reasons that “it would have been obvious
to one of ordinary skill in the art to ensure the bath is at least 75% smaller in
the collapsed configuration to reduce the space it occupies during storage.”
Final Act. 7. The Examiner submits that because this modification would
have involved a mere change in the size of a component, it is generally
recognized to be within the level of ordinary skill in the art. Id. (citing
MPEP § 2144.04(1V)(A)). The Examiner also submits that there does not
appear to be any different performance between Tsang’s device and the
claimed invention. Ans. 11. The Examiner states, “Applicant has not
disclosed a unique/inventive ‘performance’ generated by this claimed
percentage other than that it makes it more convenient for storage and
travel.” Id. (citing Spec. ¶ 23). The Examiner submits that an ordinary
artisan would have expected both Tsang’s basin and the claimed invention to
perform equally well with a 75% reduction in total height into a collapsed
configuration, because both devices significantly reduce the overall height of
the device to a more compact form. Id.
Appellant first contends that it is improper to rely on Stolbach’s
drawings as illustrating the claimed numerical value. We agree. “It is well
established that patent drawings do not define the precise proportions of the
elements and may not be relied on to show particular sizes if the
specification is completely silent on the issue.” See Hockerson-Halberstadt,
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Inc. v. Avia Group. Int’l, Inc., 222 F.3d 951, 956 (Fed. Cir. 2000). Here,
Tsang does not provide such description. In fact, Tsang discloses that “[t]he
figures are not necessarily to scale; some features may be exaggerated or
minimized to show details of particular components.” See Tsang ¶ 13.
Second, Appellant contends that “merely changing certain dimensions
in the Tsang foot bath would not enable it to achieve a 75% reduction in size
in its collapsed configuration.” Appeal Br. 9. According to Appellant, “as
portability is an important objective of the described embodiments, the
ability to reduce a depth of the bath container by 75% in the collapsed
configuration results in the claimed device performing differently than the
Tsang apparatus.” Id.
Tsang discloses that side wall 18 can have multiple folds or “an
accordion-style collapsible structure.” See Tsang ¶ 19. Comparing Figure 3
showing a collapsed position with Figures 4 and 5 showing an extended
position, it is apparent that the folds cause the collapsed position to have a
reduced height as compared to the extended position. Although Tsang does
not describe a numerical percentage of this height reduction, things shown
clearly in these figures are not to be disregarded. See In re Mraz, 455 F.2d
1069, 1072 (CCPA 1972).
Appellant does not explain persuasively how the claimed reduction in
depth provides a difference in performance in the claimed collapsed or
expanded configuration as compared to Tsang’s apparatus. See Appeal
Br. 9. We note that where the only difference between a claim and the prior
art is a recitation of relative dimensions of the claimed device, and a device
having the claimed relative dimensions would not perform differently than
the prior art device, the claimed device is not patentably distinct from the
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prior art device. Gardner v. TEC Syst., Inc., 725 F.2d 1338, 1349 (Fed.
Cir. 1984). According to Appellant, “[t]he 75% reduction in height ‘making
it more convenient for storage and travel’ is a tremendous advantage over
the modified Stolbach/Tsang structure.” Reply Br. 2. However, Tsang
describes, “[i]n the collapsed position, the footbath apparatus 10 is in a
configuration that provides for storage due to its smaller overall size.” See
Tsang ¶ 17. As such, Tsang teaches that reducing the height of the apparatus
is desirable for storage purposes. This reduction would be desirable for
travel purposes as well. One of ordinary skill in the art would recognize that
increasing the percentage of height reduction would be desirable for these
purposes. We are not convinced by Appellant’s contentions that the claimed
bath container performs differently than Tsang’s apparatus. Nor does
Appellant provide any persuasive reason why one of ordinary skill in the art
would have been unable to achieve the claimed depth reduction in the
proposed combination.
For the above reasons, we sustain the rejection of claim 12 as
unpatentable over Stolbach and Tsang.

Claims 6 and 7 Over Stolbach, Tsang, and Heath
Claims 9 and 10 Over Stolbach, Tsang, and Anderson
As for the rejections of dependent 6, 7, 9 and 10, Appellant contends
that Heath and Anderson fail to cure the deficiencies in the rejection of
claim 1. Appeal Br. 10. However, Appellant does not apprise us of any
deficiency in the rejection of claim 1, and thus, we sustain the rejections of
claims 6 and 7 as unpatentable over Stolbach, Tsang, and Heath, and
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claims 9 and 10 as unpatentable over Stolbach, Tsang, and Anderson, for the
same reasons as for claim 1.

Claims 11, 13, and 15 Over Stolbach, Tsang, Anderson, and Reda
Claim 11
For claim 11, Appellant contends that Heath does not cure the
deficiency in the rejection of parent claim 1. Appeal Br. 10. As Appellant
does not apprise us of any deficiency in the rejection of claim 1, we sustain
the rejection of claim 11 unpatentable over Stolbach, Tsang, Anderson, and
Reda for the same reasons as for claim 1.
Claims 13 and 15
Independent claim 13 is directed to a bath container comprising, inter
alia, “two treatment tube support tabs positioned on the outer ledge and on a
bottom surface of the holding section, respectively.” Appeal Br. 13–14
(Claims App.). The Examiner concedes that Stolbach does not disclose this
limitation. Final Act. 9. To address this omission, the Examiner first relies
on Anderson as teaching a bath container S comprising a holding section
(sidewall 20), an outer ledge (rim R), and a treatment tube support tab
C (channel C) positioned on the outer ledge. Id. at 10 (citing Anderson,
Fig. 1). The Examiner concludes that it would have been obvious to provide
a treatment tube support tab on the outer ledge, as taught by Anderson, to
assist a user in the use of a bidet sprayer or medical applicator. Id. The
Examiner then further relies on Reda as teaching a bath comprising an outer
ledge and a holding section with a treatment tube support tab on a bottom
surface of the holding section. Id. (showing annotated figures). The
Examiner concludes that it further would have been obvious to provide a
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treatment tube on the holding section, as taught by Reda, to permit the
application of water and/or medicine to different areas of the body as
required by the user. Id. The Examiner explains that the combined
“teachings result in a basin having a treatment tube support tab on its outer
ledge and a second support tab on a bottom surface of its holding section
permitting selective attachment of a holding tube in different positions as
desired/required by a user.” Ans. 12.
“Appellant submits that this dependent claim is allowable at least by
[virtue] of its dependency on an allowable independent claim.” Appeal Br.
10. However, claim 13 is not a dependent claim. Appellant next contends
that “none of the cited references utilizes two treatment tube support tabs as
claimed.” Id. According to Appellant, the rejection pieces together a
collection of teachings that each includes, at best, a single support tab, which
is hindsight. Id. “Appellant submits that none of the cited references
suggests the desirability of including a second support tab.” Id. at 10–11.
These contentions are unpersuasive. There is no requirement that any
one of the applied references, individually, teaches two treatment tube
support tabs, as claimed. An Examiner is not required to “seek out precise
teachings directed to the specific subject matter of the challenged claim.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Rather, in an
obviousness analysis, an Examiner can consider not only the express
disclosures of the references, but also the “inferences and creative steps that
a person of ordinary skill in the art would employ.” Id. Here, the rejection
is based on a combination of reference teachings, and Appellant’s
contentions are unpersuasive because they do not address what the collective
information demonstrates a skilled artisan would have known, and how that
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collective knowledge would have influenced the steps taken by such an
artisan. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Furthermore, Appellant does not apprise us of error in the Examiner’s
rationale for combining the teachings of Anderson and Reda with those of
Stolbach and Tsang to result in the claimed bath container.
As Appellant does not apprise us of error in the Examiner’s findings
or reasoning, we sustain the rejection of claim 13, and claim 15 depending
therefrom, as unpatentable over Stolbach, Tsang, Anderson, and Reda.
CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 5, 8, 12 103 Stolbach, Tsang 1–3, 5, 8, 12
6, 7 103 Stolbach, Tsang,
Heath
6, 7
9, 10 103 Stolbach, Tsang,
Anderson
9, 10
11, 13, 15 103 Stolbach, Tsang,
Anderson, Reda
11, 13, 15
Overall
Outcome
1–3, 5–13, 15

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED