Sushant Trivedi et al.

Patent Trials and Appeals Board

Jul 31, 2019

15232007 - (D) (P.T.A.B. Jul. 31, 2019)

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.
15/232,007 08/09/2016 Sushant Trivedi 14043 3440
27752 7590 07/31/2019
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
GEHMAN, BRYON P
ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
07/31/2019 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
mayer.jk@pg.com
pair_pg@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SUSHANT TRIVEDI and JACQUELINE AMOS GAGAS
____________

Appeal 2019-000882
Application 15/232,0071
Technology Center 3700
____________

Before DANIEL S. SONG, STEFAN STAICOVICI, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE.
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision in the Final Office Action (dated June 8, 2018, hereinafter “Final
Act.”) rejecting claims 1–17. We have jurisdiction over this appeal under
35 U.S.C. § 6(b).

SUMMARY OF DECISION
We AFFIRM.

1 The Gillette Company LLC is the applicant and is identified as the real
party in interest in Appellant’s Appeal Brief (filed July 17, 2018, hereinafter
“Br.”). Br. 1.
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INVENTION
Appellant’s invention is directed to “a packaged shaving product.”
Spec. 1, ll. 5–6.
Claims 1, 4, and 12 are independent. Claim 1 is illustrative of the
claimed invention and reads as follows:
1. A packaged shaving product comprising:
a razor handle connectable in use with a razor blade
cartridge, and
a single use disposable blister package enclosing only
said razor handle without the razor blade cartridge being
enclosed within the disposable blister package.

REJECTIONS
I. The Examiner rejects claims 1–3 under 35 U.S.C. § 102(a)(1)
as anticipated by Iten (US 3,970,194, iss. July 20, 1976).
II. The Examiner rejects claims 1–3 under 35 U.S.C. § 103 as
being unpatentable over Iten.
III. The Examiner rejects claims 4–17 under 35 U.S.C. § 103 as
being unpatentable over Taub et al. (US 8,793,880 B2, iss. Aug.
5, 2014, hereinafter “Taub”) or Terry et al. (US 3,935,639, iss.
Feb. 3, 1976, hereinafter “Terry”) or Perry (US 3,768,162, iss.
Oct. 30, 1973) and Iten.

ANALYSIS
Rejection I
Appellant does not present arguments for the patentability of claims 2
and 3 apart from claim 1. See Br. 3–4. Therefore, in accordance with 37
C.F.R. § 41.37(c)(1)(iv), we select claim 1 as the representative claim to
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decide the appeal of the rejection of these claims, with claims 2 and 3
standing or falling with claim 1.
The Examiner finds Iten discloses a packaged shaving product
including, inter alia, blister package 30 enclosing only handle 31 and blister
package 20 enclosing a razor blade cartridge that is connectable to handle
31. Final Act. 2 (citing Iten, Fig. 1). According to the Examiner, if blister
package 20 is separated from the package of Iten’s Figure 1 what remains is
“a razor handle (31) connectable to a razor blade cartridge, and a single use
disposable blister package (30 secured to the remainder of 10) enclosing
only the razor handle.” Id. at 3.
Appellant argues that “[t]here is no disclosure or teaching in Iten to in
fact separate the handle from the remainder of the package and make the
handle and only the handle the packaged article from the start.” Br. 3.
We are not persuaded by Appellant’s position because as the
Examiner correctly finds “the dashed line provided between the portions as
shown in [Iten’s] Figure 1 is meant to disclose a perforated line to facilitate
separation of the portions into two discrete parts.” Examiner’s Answer
(dated Sept. 14, 2018, hereinafter “Ans.”) 6. We agree with the Examiner
that because dashed line 44 in Figure 7 “is identified as a weakened line of
perforations,” to a skilled artisan then “it is reasonable to consider the
dashed line represented in [Iten’s] Figure 1 . . . to indicate a perforated line
of weakening to separate the razor handle blister [30] from the razor
cartridges blister [20] for separate disposition in the use of the razor handle
separately from all of the [razor blade] cartridges.” Id.; see also Iten, col. 3,
ll. 16–17.
Hence, for the foregoing reasons, we do not agree with Appellant that
“Iten fails to be an anticipatory reference.” Br. 3. As Appellant does not
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persuasively respond to the Examiner’s findings and reasoning discussed
above, we sustain the rejection under 35 U.S.C. § 102(a)(1) of independent
claim 1 as anticipated by Iten. Claims 2 and 3 fall with claim 1.

Rejection II
As Appellant does not present arguments for the patentability of
claims 2 and 3 apart from claim 1, we select claim 1 as the representative
claim to decide the appeal of the rejection of these claims, with claims 2 and
3 standing or falling with claim 1. See Br. 3–4.
The Examiner determines that even assuming arguendo Iten fails to
disclose a line of weakness to separate razor handle blister 30 from razor
cartridges blister 20 in the Figure 1 embodiment, as discussed above in
Rejection I, nonetheless, dividing Iten’s package 10 “into two parts is
considered to have been obvious.” Final Act. 3 (citing In re Karlson, 311
F.2d 581 (CCPA 1963) (Omission of an element and its function in a
combination where the remaining elements perform the same function as
before involves only routine skill in the art.)). According to the Examiner,
providing a line of weakness to separate Iten’s razor handle blister 30 from
razor cartridges blister 20 would have been obvious to a person of ordinary
skill in the art “for separate disposition in the use of the razor handle
separately from all of the [razor] cartridges.” Ans. 6. The Examiner further
asserts that because Iten discloses a packaged shaving product including a
razor handle and a set of razor blade cartridges, no more than ordinary skill
in the art is required to obtain an “individual package of a razor handle only,
without a set of cartridges, or even vice versa.” Id. at 7.
Appellant argues that the Examiner’s modification is based on
impermissible hindsight as there is “no suggestion or motivation to make the
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[Examiner’s] modification to Iten.” Br. 3–4. According to Appellant,
“[t]here is no indication that . . . [Iten] ever considered that the razor handle
would be sold independently without razor cartridges.” Id. at 4. Moreover,
Appellant takes the position that because no skilled artisan has envisioned
since 1976, when Iten was granted a patent, to separate Iten’s razor handle
blister 30 from razor cartridges blister 20, as the Examiner proposes, the
Examiner’s modification is “drastic, unconventional and far from obvious.”
Id. at 3.
We are not persuaded by Appellant’s hindsight argument because
even though Iten may not describe a line of weakness with respect to the
embodiment of Figure 1, nonetheless, as discussed supra in Rejection I, Iten
discloses dashed line 44 in Figure 7 as a line of weakness, and, thus, Iten
would suggest to a person of ordinary skill in the art to separate razor handle
blister 30 from razor cartridges blister 20 in the Figure 1 embodiment for
their respective independent use. See Ans. 6; see also Iten, col. 3, ll. 15–20
(“[T]he card has a line 44 weakened as by perforations whereby the upper
section of the card 40a may be torn off leaving the reduced small section
40b with the blister for convenient inclusion in a toilet kit.”). Furthermore,
the Examiner has provided a reason with rational underpinning to modify
Iten’s package to provide a line of weakness to separate razor handle blister
30 from razor cartridges blister 20, namely, “for separate disposition in the
use of the razor handle separately from all of the [razor] cartridges.”). See
Ans. 6; In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on
obviousness grounds [require] some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness”) (cited with
approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)).
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Appellant does not persuasively argue that the Examiner’s conclusion lacks
rational underpinning.
Furthermore, although we appreciate Appellant’s position that Iten
does not disclose selling razor handle blister 30 separate from razor
cartridges blister 20 (see Br. 4), we note that such a feature is not positively
recited in claim 1 and limitations not appearing in the claim cannot be relied
upon for patentability. In re Self, 671 F.2d 1344, 1348 (CCPA 1982).
Moreover, with respect to the age of Iten’s patent (see Br. 3), the Examiner
is correct that the mere age of a reference is not persuasive of the
unobviousness of Examiner’s modification of the reference, “absent
evidence that, notwithstanding knowledge of the references, the art tried and
failed to solve the problem.” In re Wright, 569 F.2d 1124, 1127 (CCPA
1977); see also Ans. 7.
Appellant further contends that the Examiner’s reliance on Karlson is
misplaced because removing blister package 20 from Iten’s package “would
predictably amount to the removal of a portion and its function.” Br. 4
(citing In re Wright, 343 F.2d 761, 769–70 (CCPA 1965)).
We are not persuaded that the Examiner misapplied Karlson so as to
warrant reversal of the rejection. In Karlson, the proposed modification did
not result in any change of function of the remaining elements. See Karlson,
311 F.2d at 584. Similarly, in this case, remaining elements razor handle
blister 30 and razor cartridges blister 20 of Iten function in the same manner
whether they are part of the same package or are separated, that is, blister 30
holds handle 31 and blister 20 holds razor cartridges 22.
Lastly, we are not persuaded by Appellant’s arguments because a
disclosure that anticipates under 35 U.S.C. § 102 also renders the claim
unpatentable under 35 U.S.C. § 103, for “anticipation is the epitome of
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obviousness.” In re Fracalossi, 681 F.2d 792, 794 (CCPA 1982); In re
Pearson, 494 F.2d 1399, 1402 (CCPA 1974). Hence, Appellant’s arguments
are not persuasive because we sustain the rejection of claims 1–3 as
anticipated by Iten. See Rejection I.
In conclusion, for the foregoing reasons, we sustain the rejection of
claim 1 under 35 U.S.C. § 103 as unpatentable over Iten. Claims 2 and 3 fall
with claim 1.

Rejection III
With respect to Rejection III, Appellant relies on the arguments
discussed supra in Rejections I and II. Br. 5 (“Iten fails to anticipate or
render obvious a single use disposable blister package consisting of a single
blister enclosing only a razor handle.”). Therefore, for the same reasons
discussed above, we also sustain Rejection III.

SUMMARY
The Examiner’s decision to reject claims 1–3 under 35 U.S.C.
§ 102(a)(1) as anticipated by Iten is affirmed.
The Examiner’s decision to reject claims 1–3 under 35 U.S.C. § 103
as unpatentable over Iten is affirmed.
The Examiner’s decision to reject claims 4–17 under 35 U.S.C. § 103
as unpatentable over Taub or Terry or Perry and Iten is affirmed.
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