KIMBERLY-CLARK BRASIL INDUSTRIA E COMERCIO DE PRODUTOS DE HIGIENE LTDA

Patent Trials and Appeals Board

Mar 24, 2022

2021004504 (P.T.A.B. Mar. 24, 2022)

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. 15/214,017 07/19/2016 Sara V. Santos KCX-1854-PCTUS 6654 111049 7590 03/24/2022 DORITY & MANNING, P.A. and KIMBERLY-CLARK WORLDWIDE, INC. POST OFFICE BOX 1449 GREENVILLE, SC 29602-1449 EXAMINER RANDALL, JR., KELVIN L ART UNIT PAPER NUMBER 3651 NOTIFICATION DATE DELIVERY MODE 03/24/2022 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): usdocketing@dority-manning.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SARA V. SANTOS, BRUNO GIOIELLI BASSO, and MAURICIO BANDEIRA VILLAMIL Appeal 2021-004504 Application 15/214,017 Technology Center 3600 Before JENNIFER D. BAHR, BENJAMIN D. M. WOOD, and JEREMY M. PLENZLER, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-16. 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(a). Appellant identifies the real party in interest as Kimberly-Clark Worldwide, Inc. Appeal Br. 3. Appeal 2021-004504 Application 15/214,017 2 CLAIMED SUBJECT MATTER The claims relate to a dispenser. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A sheet material dispenser comprising: a rigid container including an interior region defined at least partially by a back wall, a first sidewall extending outwardly from the back wall in a heightwise direction perpendicular to the back wall of the rigid container to an outer edge of the first sidewall, a second sidewall extending outwardly from the back wall in a heightwise direction perpendicular to the back wall of the rigid container to an outer edge of the second sidewall, the first sidewall and the second sidewall each extending laterally between a first lateral end of the rigid container and a second lateral end of the rigid container, the rigid container further including first and second front plates each including a top surface, a bottom surface and inner and outer sides extending between the top and bottom surfaces, wherein the first and second front plates are configured to be slideably coupled to the first sidewall and the second sidewall such that the first and second front plates are movable away from and towards each other along the outer edge of the first sidewall and the outer edge of the second sidewall between an opened position, wherein the first and second front plates are positioned in a distal relationship relative to one another, and a closed position, wherein the first and second front plates are positioned in an adjacent relationship relative to one another and a cap opening is formed between the inner sides of the first and second front plates; and a flexible pouch configured to contain a stack of sheets, the flexible pouch being configured to be received within the interior region of the rigid container, the flexible pouch defining a dispenser opening and including a resealable cap for intermittently exposing and resealing the dispenser opening, wherein portions of the first and second front plates are configured to be positioned directly below, engaged against and in direct contact with a bottom portion of the resealable cap to Appeal 2021-004504 Application 15/214,017 3 define an overhanging portion of the resealable cap along which the bottom portion of the resealable cap is supported by and in direct contact with the first and second front plates when the first and second front plates are moved to the closed position, and wherein each of the first and second front plates includes at least one retention member extending outwardly therefrom that is configured to engage at least one corresponding retention member provided in operative association with the first sidewall or the second sidewall to retain each plate relative to the outer edge of the first sidewall or the second sidewall in the heightwise direction of the rigid container. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Hsu US 2005/0109790 A1 May 26, 2005 Berar US 2006/0027468 A1 Feb. 9, 2006 Tagliareni US 2006/0157496 A1 July 20, 2006 Lin US 2007/0062953 A1 Mar. 22, 2007 Laroche US 2008/0061073 A1 Mar. 13, 2008 Li US 2010/0159311 A1 June 24, 2010 REJECTIONS Claims 1-5 and 7-16 are rejected under 35 U.S.C. § 103 as being unpatentable over Berar, Lin, Hsu, Tagliareni, and Laroche. Claim 6 is rejected under 35 U.S.C. § 103 as being unpatentable over Berar, Lin, Hsu, Tagliareni, Laroche, and Li. OPINION Appellant’s contentions focus on alleged deficiencies in the Examiner’s findings and rationale regarding claim 1. Appeal Br. 12-23. Appeal 2021-004504 Application 15/214,017 4 Appellant relies on those contentions for the patentability of dependent claims 2-16. Id. at 23-24. The limitation from claim 1 in dispute is the recitation that “a cap opening is formed between the inner sides of the first and second front plates” and portions of the first and second front plates are configured to be positioned directly below, engaged against and in direct contact with a bottom portion of the resealable cap to define an overhanging portion of the resealable cap along which the bottom portion of the resealable cap is supported by and in direct contact with the first and second front plates when the first and second front plates are moved to the closed position. Appellant contends that “[t]he Office Action . . . relies upon Hsu to teach a cap opening formed between the inner sides of the first and second front plates” and “portions of the first and second front plates [that] are configured to be positioned directly below and engaged against a portion of a cap when the first and second front plates are moved to the closed position.” Appeal Br. 13. Appellant contends that “Hsu fails to disclose or teach at least front plates being positioned directly below and engaged against a portion of a cap, or that the opening is a cap opening” and “[t]his deficiency is not cured by any of the other cited references.” Id. at 14. This contention is not persuasive of reversible error. The Examiner finds that Hsu teaches a cap opening (near 12) is formed between inner sides of first and second front plates (see Figs. 1-3), and a flexible pouch (70) configured to contain a stack of sheets, the flexible pouch (70) being configured to be received within the interior region of a rigid container (60) (see Fig. 3), the flexible pouch defining a dispenser opening (near 51), wherein portions Appeal 2021-004504 Application 15/214,017 5 of a first (10) and second (60) front plates are configured to be positioned directly below and engaged against a (neck) when the first (10) and second (60) front plates are moved to the closed position (see Figs. 1-6). Final Act. 6. It is unclear what structure Appellant alleges is missing from Hsu’s opening (whether it be a neck opening or a cap opening)2, other than front plates 10, 60 not “being positioned directly below and engaged against a portion of a cap.” Although Hsu’s front plates do not appear to extend directly below and be engaged against the bottom portion of a structure that could be considered a cap (or even a neck), this is not fatal to the Examiner’s rejection. As the Examiner clarifies in the Answer, “Hsu is not used to teach a cap.” Ans. 6. The Examiner finds that “Hsu teaches a cap opening (an opening) . . . which is capable of being an opening whether there is a cap present or not.” Id. Whether a cap is present in Hsu does not change the fact that Hsu has an opening. Id. at 6-7. The Examiner relies on Hsu “teach[ing] two sliding members [that] slide until they engage a neck portion of the opening.” Ans. 6. That is, the Examiner finds that Hsu teaches front plates that are slidable toward one another to define an opening when adjacent one another. There is no meaningful dispute regarding this finding. Appellant responds that “there is simply no teaching in Hsu that the opening 51 of the window tab storage case ‘is capable’ of being a cap opening as defined by the present disclosure.” Reply Br. 3. As explained above, however, the Examiner simply relies on Hsu having an opening, not the arrangement of the cap opening. 2 Appellant fails to explain what distinguishes a cap opening from a neck opening. Appeal 2021-004504 Application 15/214,017 6 The Examiner finds that “[a] cap is not taught by Hsu as a cap has been taught by Tagliareni.” Ans. 7. The Examiner finds that Tagliareni teaches a flexible pouch (152), the flexible pouch (152) defining a dispenser opening (near 154) and including a resealable cap (164) for intermittently exposing and resealing the dispenser opening (near 154), wherein a front plate (134) is configured to be positioned directly below and engaged against a bottom portion (near 160) of the resealable cap (164) to define an[] overhanging portion (see Fig. 1) of the resealable cap along which the bottom portion of the resealable cap is supported by a plate. Final Act. 6-7. Appellant does not dispute the Examiner’s findings. Rather, Appellant responds that “Tagliareni clearly teaches a dispenser assembly having a single, unitary cover.” Appeal Br. 17. This does not apprise us of reversible error because, as noted above, the Examiner relies on Hsu teaching the two-piece cover. Appellant additionally contends that “Laroche does not teach an overhanging portion of a resealable cap engaged against and in direct contact with a portion of a plate” or “a bottom portion of a resealable cap engaged against and in direct contact with a portion of a plate.” Appeal Br. 18-19. It is not entirely clear why the Examiner additionally cites Laroche as teaching a portion (52, 190) of a plate is configured to be positioned directly below, engaged against and in direct contact with a bottom portion of a resealable cap (22, 122) to define an overhanging portion (near 24, 124) of the resealable cap (22, 122) along which a bottom portion (underside of 1st top portion) of the resealable cap is supported by and in direct contact with the plate when the plate is moved to a closed position (see Figs. 1-7). Appeal 2021-004504 Application 15/214,017 7 Final Act. 7. As noted above, the Examiner already finds that Tagliareni teaches many of these features. It appears that the Examiner relies on Laroche teaching similar features, but with a plate that is slidable to a closed position. See Ans. 14. Appellant’s contentions appear to read some unspecified structure into the claim with respect to the recited “bottom portion.” Appellant offers no persuasive explanation as to why Laroche’s grooves 24, 124 cannot properly be considered the recited bottom portion of the cap. Moreover, as noted above, the features disputed by Appellant with respect to Laroche are supported by other findings made by the Examiner relative to Tagliareni. Accordingly, Appellant’s contentions related to Laroche do not apprise us of reversible error. As for the Examiner’s reasoning for combining the teachings of the various references, “Appellant respectfully submits that combining the teachings of Hsu with those of Berar and Lin would render Berar unsatisfactory for its intended purpose” and the only way “to arrive at the structure of claim 1 through study of the cited references is only reachable from improper hindsight.” Appeal Br. 22. Appellant does not address the Examiner’s reasoning to combine Berar’s teachings with the teachings of Tagliareni or Laroche. Those contentions are not persuasive. Appellant does not dispute any rationale relied on by the Examiner. The Examiner’s findings establish well-known features of various types of dispensers. The Examiner’s combination is not the result of hindsight, but, rather, design considerations that one skilled in the art would make when viewing the combined teachings of the cited references. The Examiner cites Berar’s teachings for the general structure of a dispenser receptacle. The Appeal 2021-004504 Application 15/214,017 8 combination employs a different type of package within a receptacle (i.e., one with a resealable cap) and includes a different variation of lid, as taught by the other cited references. Appellant’s contention related to Berar being unsatisfactory for its intended purpose fails to identify reversible error in the actual basis for the Examiner’s rejection because the Examiner’s rejection is based on what one skilled in the art would have found obvious based on the combined teachings in the cited references. The Examiner does not propose any sort of bodily incorporation into Berar’s dispenser. For at least the reasons set forth above, we are not apprised of error in the Examiner’s decision to reject claims 1-16. CONCLUSION The Examiner’s rejections are affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-5, 7-16 103 Berar, Lin, Hsu, Tagliareni, Laroche 1-5, 7-16 6 103 Berar, Lin, Hsu, Tagliareni, Laroche, Li 6 Overall Outcome 1-16 Appeal 2021-004504 Application 15/214,017 9 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