Stephen Roy et al.

Patent Trials and Appeals Board

May 7, 2020

2019006951 (P.T.A.B. May. 7, 2020)

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.
15/915,031 03/07/2018 Stephen Roy ROY_STEPHEN.001U_IC 7376
16424 7590 05/07/2020
Bruce A Lev
22276 N 103rd Dr
Peoria, AZ 85383
EXAMINER
OJOFEITIMI, AYODEJI T
ART UNIT PAPER NUMBER
3651
NOTIFICATION DATE DELIVERY MODE
05/07/2020 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):
levdoctor@yahoo.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte STEPHEN ROY and SHANE LYNCH

Appeal 2019-006951
Application 15/915,031
Technology Center 3600
____________

Before JOHN C. KERINS, STEFAN STAICOVICI, and
MICHAEL J. FITZPATRICK, Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1 and 3–8.1,2 We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 The term “Appellant” is used herein to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Stephen Roy and Shane Lynch, as the
real parties in interest. Appeal Br. 2.
2 The rejections of claims 9–15 set forth in the Final Action are withdrawn
by the Examiner on Appeal, with the Examiner stating that those claims are
allowable. See Final Act. 7–11; Ans. 6.
Appeal 2019-006951
Application 15/915,031

2
THE CLAIMED SUBJECT MATTER
Appellant’s invention relates to an improved sanitary wipe apparatus.
Claim 1 is illustrative, and is reproduced below:
1. An improved sanitary wipe apparatus comprising:

a dispenser box including:

a bottom wall;

a top wall including:

an aperture therethrough; and

at least one side wall;

wherein said at least one side wall is connected
between said bottom wall and said top wall;

wherein said bottom wall, said top wall, and said at
least one side wall form an interior volume; and

a plurality of sanitary wipe members, each comprising:

a main body;

wherein said main body is formed from a fabric
material;

an anti-microbial agent;

wherein said end anti-microbial agent is
impregnated within said fabric material, and is
adapted to kill and remove anti-microbial agents
from a top drinking surface of a beverage can;

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Application 15/915,031

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wherein said plurality of sanitary wipe members are
adapted to be stored within said dispenser box and
removed one-by-one for use by a person to remove anti-
microbial agents from said top drinking surface of said
beverage can before drinking therefrom;

wherein one of said bottom wall and said at least one side wall
includes an attachment member adapted to removably attach to a
front surface of a beverage dispenser apparatus, such that said
plurality of sanitary wipe members are accessible for use when a
person removes a beverage can from said beverage dispenser
apparatus to drink therefrom.

THE REJECTIONS
The Examiner rejects:
(i) claims 1, 4, and 7 under 35 U.S.C. § 103 as being unpatentable
over Ashford (US 2003/0178436 A1, published Sep. 25, 2003) in view of
Fearon (US 2010/0270325 A1, published Oct. 28, 2010);
(ii) claim 3 under 35 U.S.C. § 103 as being unpatentable over Ashford
in view of Fearon and Frias (US 2013/0105506 A1, published May 2, 2013);
(iii) claim 5 under 35 U.S.C. § 103 as being unpatentable over
Ashford in view of Fearon and Burgess (US 7,228,968 B1, issued June 12,
2007);
(iv) claim 6 under 35 U.S.C. § 103 as being unpatentable over
Ashford in view of Fearon and Lorenzati (US 2009/0223993 A1, published
Sept. 10, 2009); and
(v) claim 8 under 35 U.S.C. § 103 as being unpatentable over Ashford
in view of Fearon and Annand (US 5,540,354, issued July 30, 1996).

Appeal 2019-006951
Application 15/915,031

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ANALYSIS
Rejection (i)--claims 1, 4, and 7--Unpatentability over Ashford and Fearon
The Examiner relies on Ashford as disclosing a sanitary wipe
apparatus meeting all of the limitations set forth in claim 1, with the
exception of providing an attachment member included on one of a bottom
wall or at least one side wall of a dispenser box of the apparatus that is
adapted to removably attach to a front surface of a beverage dispenser
apparatus. Final Act. 4. The Examiner cites to Fearon as disclosing a
dispenser box similar to that in Ashford for dispensing wipes, but which also
discloses that a bottom wall 23A and a side wall 22 include an attachment
member that is adapted to removably attach to a front surface of a beverage
dispenser apparatus. Id. The Examiner concludes that it would have been
obvious to modify Ashford to provide it with an attachment member
included on a bottom or side wall thereof, in order to facilitate mounting the
Ashford dispenser box to a vertical surface. Id.
Appellant argues that, contrary to the Examiner’s finding, Fearon does
not disclose that its attachment member is adapted to be removably attached
to a front surface of a beverage dispenser apparatus, as claimed. Appeal Br.
4. Appellant bases its argument on the fact that Fearon nowhere discusses
“beverage containers,” nor being adapted to be attached to a “beverage
container.” Id. Appellant maintains that, due to the absence of any mention
in Fearon of a beverage container, “it should not be used by the examiner to
‘teach’ attaching the sanitary wipe apparatus of Ashford to the front surface
of a beverage dispenser apparatus.” Id. (emphasis omitted).
The Examiner replies that the attachment member of Fearon “can be
[]removably attached to a front surface of a beverage display apparatus,” and
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Application 15/915,031

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that the wipe dispenser is thus “fully capable of being attached to any
surface, which includes the front, vertical surface of a beverage dispenser
apparatus.” Ans. 7. The Examiner points out that Figure 8 of Fearon shows
the attachment member securing the wipe dispenser to a vertical solid
surface, not unlike the vertical surface shown in Appellant’s Figure 3B. Id.
The Examiner has the better position here. Claim 1 requires only that
the attachment member be “adapted to” removably attach the dispenser box
to a front surface of a beverage dispenser apparatus, and does not positively
recite either the presence of a beverage dispenser apparatus or that the
dispenser box is removably attached thereto. The Examiner points out that
the attachment member of Fearon allows for the dispenser box to be attached
to a vertical surface, which is generally the orientation of a front surface of a
beverage dispenser apparatus, as evidenced in Figures 3A–3B of Appellant’s
drawings. Ans. 7.
Appellant’s argument is essentially that, in Fearon or in Ashford, the
wipe dispenser box is not removably attached to a front surface of a
beverage dispenser apparatus, and does not actually contest that the
attachment member of Fearon, as applied to Ashford, would be “adapted to”
be removably attached to such a front surface. Appellant does not argue, for
example, that the vertical surface to which the Fearon dispenser box is
attached is different in some way from the vertical surface of a beverage
dispenser apparatus. In this regard, Appellant’s Specification discloses that,
in one embodiment, the attachment member that is “adapted to” attach to the
front surface of the beverage dispensing apparatus is double-sided tape.
Spec. ¶ 25. Similarly, the attachment member disclosed in Fearon may be
an adhesive strip 25. Fearon ¶ 52.
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Appellant’s arguments thus fail to apprise us of Examiner error in the
rejection of claim 1. Claims 4 and 7 are not separately argued, and therefore
fall with claim 1.

Rejections (ii)–(v)
Appellant presents no arguments traversing these rejections
specifically, and we therefore assume that the arguments advanced with
respect to claim 1 are intended to apply to the claims subject to these
rejections. For the reasons set forth above, the rejections are sustained.

DECISION
The rejections of claims 1 and 3–8 as being unpatentable are affirmed.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4, 7 103 Ashford, Fearon 1, 4, 7
3 103 Ashford, Fearon, Frias 3
5 103 Ashford, Fearon,
Burgess
5
6 103 Ashford, Fearon,
Lorenzati
6
8 103 Ashford, Fearon,
Annand
8
Overall
Outcome

1, 3–8

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Application 15/915,031

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED