Poka Yoke, Inc.

Patent Trials and Appeals Board

Mar 1, 2022

2021004223 (P.T.A.B. Mar. 1, 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. 15/916,806 03/09/2018 Renee Januchowski Kryscio 0278/1US-A 4177 78107 7590 03/01/2022 ASHLEY LAW FIRM P.C. 10700 SIKES PLACE SUITE 230 CHARLOTTE, NC 28277 EXAMINER RANDALL, JR., KELVIN L ART UNIT PAPER NUMBER 3651 MAIL DATE DELIVERY MODE 03/01/2022 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte RENEE JANUCHOWSKI KRYSCIO and KEVIN P. KRSYCIO __________ Appeal 2021-004223 Application 15/916,806 Technology Center 3600 __________ Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and ANNETTE R. REIMERS, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1-6, 8-12, 14-16, and 18-22. See Final Act. 1.3 We have jurisdiction under 35 U.S.C. § 6(b). 1 Appellant indicates that an appeal was filed in parent Application No. 15/122,514 but the appeal was terminated before a decision was rendered. See Appeal Br. 4. 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Poka Yoke, Inc. Appeal Br. 3. 3 Claim 23 was rejected under 35 U.S.C. § 103 over Marino, Lin, Kelly, and Kulle (US Des. 302,304, issued July 18, 1989). Final Act. 23. However, the rejection of claim 23 has been withdrawn from consideration and thus, is not Appeal 2021-004223 Application 15/916,806 2 We AFFIRM. STATEMENT OF THE CASE The claims are directed to an apparatus for dispensing a plurality of applicator wipes. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An apparatus for dispensing a plurality of applicator wipes comprising: (a) a generally cylindrical housing adapted for containing a roll of applicator wipes, the housing having a dispensing opening formed therein whereby an applicator wipe contained in the housing can be grasped and pulled out of the housing; (b) first and second attachment members extending outwardly from the housing and adapted for receiving and frictionally engaging a cylindrical intravenous tubing line, wherein each of the first and second attachment members comprise first and second separated segments each having a concave surface and a slanted surface in communication with the concave surface, wherein the concave surface of the first segment faces the concave surface of the second segment and together define an arcuate cavity that is shaped and sized to receive and frictionally engage the intravenous tubing line, and the slanted surface of the first segment and the slanted surface of the second segment define a narrowing passageway wherein distance between the first segment and the second segment is greatest at a position distal to the concave surfaces of the first segment and the second segment and gradually decreases until the slanted surface of the first segment meets the concave surface of the first segment and the slanted surface of the second segment meets the concave surface of the second segment; and (c) a curved member positioned intermediate the first and second attachment members and adapted for moving the intravenous tubing line at an angle relative to the first and second attachment members, the curved member having an arcuate before us for review. See Ans. 3 (we refer hereinafter to the Answer dated May 4, 2021). Appeal 2021-004223 Application 15/916,806 3 shape conforming to the cylindrical intravenous tubing line whereby the curved member can engage the intravenous tubing line without impeding a flow of fluid through the tubing line. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Poitras US 3,568,635 Mar. 9, 1971 Newbold US 5,660,313 Aug. 26, 1997 Marino US 5,897,074 Apr. 27, 1999 Lin US 5,970,922 Oct. 26, 1999 Stravitz US 6,164,442 Dec. 26, 2000 Edwards US 6,240,881 B1 June 5, 2001 D’Angelo US 9,198,545 B2 Dec. 1, 2015 Khalaj US 9,248,260 B2 Feb. 2, 2016 Kelly US 2008/0087560 A1 Apr. 17, 2008 Lincoln US 2008/0110919 A1 May 15, 2008 Harding US 2010/0200706 A1 Aug. 12, 2010 Boyce US 2013/0075416 A1 Mar. 28, 2013 Williams US 2015/0157116 A1 June 11, 2015 Petersen US D464,179 S Oct. 8, 2002 REJECTIONS4 Claims 1, 4, and 8 are rejected under 35 U.S.C. § 103 as being unpatentable over Marino, Lin, Kelly, and Harding. Final Act. 2. Claim 2 is rejected under 35 U.S.C. § 103 as being unpatentable over Marino, Lin, Kelly, Harding, and D’Angelo. Final Act. 7. Claim 3 is rejected under 35 U.S.C. § 103 as being unpatentable over Marino, Lin, Kelly, Harding, D’Angelo, and Poitras. Final Act. 7. 4 As indicated above in footnote 3, the rejection of claim 23 under 35 U.S.C. § 103 over Marino, Lin, Kelly, and Kulle (Final Act. 23) has been withdrawn from consideration. See Ans. 3. Appeal 2021-004223 Application 15/916,806 4 Claim 5 is rejected under 35 U.S.C. § 103 as being unpatentable over Marino, Lin, Kelly, Harding, and Boyce. Final Act. 8. Claim 6 is rejected under 35 U.S.C. § 103 as being unpatentable over Marino, Lin, Kelly, Harding, and Lincoln. Final Act. 9. Claim 9 is rejected under 35 U.S.C. § 103 as being unpatentable over Marino, Lin, Kelly, Harding, and Khalaj. Final Act. 10. Claim 10 is rejected under 35 U.S.C. § 103 as being unpatentable over Marino, Lin, Kelly, Harding, Khalaj, and Poitras. Final Act. 10. Claim 11 is rejected under 35 U.S.C. § 103 as being unpatentable over Marino, Lin, and Kelly. Final Act. 11. Claim 12 is rejected under 35 U.S.C. § 103 as being unpatentable over Marino, Lin, Kelly, and Poitras. Final Act. 13. Claim 14 is rejected under 35 U.S.C. § 103 as being unpatentable over Marino, Lin, Kelly, and Harding. Final Act. 14. Claim 15 is rejected under 35 U.S.C. § 103 as being unpatentable over Marino, Lin, Kelly, and Lincoln. Final Act. 15. Claim 16 is rejected under 35 U.S.C. § 103 as being unpatentable over Marino, Lin, Kelly, Edwards, and Williams. Final Act. 16. Claim 22 is rejected under 35 U.S.C. § 103 as being unpatentable over Marino, Lin, Kelly, and Boyce. Final Act. 22. Claim 18 is rejected under 35 U.S.C. § 103 as being unpatentable over Peterson, Lin, Kelly, and Stravitz. Final Act. 18. Claim 19 is rejected under 35 U.S.C. § 103 as being unpatentable over Peterson, Lin, Kelly, Stravitz, and Newbold. Final Act. 20. Claims 20 and 21 are rejected under 35 U.S.C. § 103 as being unpatentable over Peterson, Lin, Kelly, Stravitz, and Harding. Final Act. 21. Appeal 2021-004223 Application 15/916,806 5 OPINION Claim 1 is representative of claims 1-6, 8-12, 14-16, and 18-22 pursuant to 37 C.F.R. § 41.37(c)(1)(iv)(2019). See Appeal Br. 10-13.5 In regard to claim 1, Appellant focuses only on the following limitations: “adapted for receiving and frictionally engaging a cylindrical intravenous tubing line” and “a slanted surface in communication with the concave surface.” Appeal Br. 12-13. Appellant contends that claim 1 has been amended to include the limitation of each attachment member comprising first and second arcuate segments that each include a slanted surface in communication with the concave surface wherein the slanted surface of the first segment and the slanted surface of the second segment define a narrowing passageway wherein distance between the first segment and the second segment is greatest at a position distal to the concave surfaces of the first segment and the second segment and gradually decreases until the slanted surface of the first segment meets the concave surface of the first segment and the slanted surface of the second segment meets the concave surface of the second segment and that “[t]he cited prior art does not disclose this limitation.” Id. at 12. Here, Appellant essentially reiterates the language of claim 1 without making any substantive arguments and consequently, does not inform us of Examiner error. See 37 C.F.R. § 41.37(c)(1)(iv) (statements that merely point out what a claim recites are not considered to present an argument for separate patentability of the claim); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (Rule 41.37 requires more than recitation of the claim 5 We note that Appellant incorrectly states, “[c]laims 1-6, 8-12, 11-18 and 21-25 are pending in this application, and stand rejected.” Appeal Br. 10. Appeal 2021-004223 Application 15/916,806 6 elements and a naked assertion that the elements are not found in the prior art). Next, Appellant argues that “Figure 10 of Kelly does not disclose an attachment member ‘adapted for receiving and frictionally engaging a cylindrical intravenous tubing line’ as claimed in claim[] 1,” but “[r]ather, Figure 10 of Kelly discloses a fastener adapted to follow the shape of stethoscope tubing.” Appeal Br. 12 (citing Kelly ¶ 41). This argument does not address the rejection because the Examiner does not rely on Kelly for disclosing an attachment member adapted for receiving and frictionally engaging a cylindrical intravenous tubing line. Instead, the Examiner relies on Kelly for disclosing attachment members having concave surfaces that “define an arcuate cavity (136) that is shaped and sized to receive and frictionally engage the tubing line (98).” Final Act. 4; emphasis added (citing Kelly ¶¶ 39, 41-43; Figs. 1-14); see also Final Act. 13, 19. The Examiner relies on Lin for disclosing “attachment members extending outwardly from a housing and adapted for receiving and frictionally engaging a cylindrical intravenous tubing line (carrying body 30).” Id. at 3; emphasis added (citing Lin Figs. 1-4); see also Final Act. 12, 19. The Examiner also relies on Harding for disclosing a curved member (140) positioned intermediate first and second attachment members (40) and adapted for moving an intravenous tubing line (12) at an angle relative to the first and second attachment members (40), the curved member (140) having an arcuate shape conforming to the cylindrical intravenous tubing line whereby the curved member (140) can engage the intravenous tubing line (12) without impeding a flow of fluid through the tubing line. Id. at 5; emphases added (citing Harding Figs. 1-9). Appellant does not dispute these findings. Appeal Br., passim. “Non-obviousness cannot be Appeal 2021-004223 Application 15/916,806 7 established by attacking references individually where the rejection is based upon the teachings of a combination of references. [The reference] must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citation omitted). See also In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellant also argues that “[t]he surfaces that the Examiner asserts are slanted in the Final Office action, are merely the straight edges of a semi- circular clip 134.” Appeal Br. 12-13. Appellant contends that in regard to Kelly’s Figure 10, “[t]he surfaces that the Examiner asserts are slanted, labeled as reference ‘A’ by Applicant, are actually straight edges of a semi- circular clip 134” and “the clip edges A reside at a right angle to the concave surface B of the clip 134” whereas in Appellant’s dispensing apparatus shown in Figure 5, the attachment members “have a slanted surface A in communication with the concave surface B.” See Reply Br. 2-3. To the extent that Appellant is arguing that the portion of Kelly’s clip identified as “A” in Appellant’s annotated Figure 10 of Kelly (see Reply Br. 2) is an edge and not a surface, we disagree. Figure 10 shows a cross- sectional view of the fastener 110 that is shown in Kelly’s Figure 6 and 7 such that it would be unreasonable to consider portion “A” in annotated Figure 10 as an edge rather than as a surface. Further, if portion “A” is an “edge” rather than a “surface,” it would not make sense for Appellant to argue that edge A is at right angle to a surface. Next, just because surface A is “straight” does not mean that it cannot also be a slanted surface. Also, claim 1 does not preclude slanted surfaces that are at a right angle to a portion of a concave surface. “[L]imitations are Appeal 2021-004223 Application 15/916,806 8 not to be read into the claims from the specification.” In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). See also In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“[A]ppellant’s arguments fail from the outset because . . . they are not based on limitations appearing in the claims.”). We further note that surface A and surface B of Appellant’s own Figure 5 as further annotated by Appellant, appear to be also at a right angle to each other. See Reply Br. 3. Lastly, in the Reply Brief, Appellant contends that “[t]he Examiner’s Answer does not designate a new ground of rejection” and that “to the extent any argument contained in the Examiner’s Answer is construed to be a new ground of rejection, Applicant traverses any such rejection and maintains this appeal.” Id. at 2. Appellant does not explain why the Examiner should have designated a new ground of rejection and thus, Appellant’s argument lacks specificity. Only issues and findings of fact contested by the Appellant will be addressed. See Ex Parte Frye, 94 USPQ2d 1072, 1075-76 (BPAI 2010) (precedential). Further, even if the Examiner’s Answer includes a new ground of rejection, that is a petitionable matter rather than an appealable matter. See 37 C.F.R. § 41.40(a). Accordingly, for these reasons, we sustain the Examiner’s rejections of claims 1-6, 8-12, 14-16, and 18-22 as unpatentable over the various combinations of cited art. CONCLUSION The Examiner’s rejections of claims 1-6, 8-12, 14-16, and 18-22 are affirmed. Appeal 2021-004223 Application 15/916,806 9 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 4, 8 103 Marino, Lin, Kelly, Harding 1, 4, 8 2 103 Marino, Lin, Kelly, Harding, D’Angelo 2 3 103 Marino, Lin, Kelly, Harding, D’Angelo, Poitras 3 5 103 Marino, Lin, Kelly, Harding, Boyce 5 6 103 Marino, Lin, Kelly, Harding, Lincoln 6 9 103 Marino, Lin, Kelly, Harding, Khalaj 9 10 103 Marino, Lin, Kelly, Harding, Khalaj, Poitras 10 11 103 Marino, Lin, Kelly 11 12 103 Marino, Lin, Kelly, Poitras 12 14 103 Marino, Lin, Kelly, and Harding 14 15 103 Marino, Lin, Kelly, Lincoln 15 16 103 Marino, Lin, Kelly, Edwards, Williams 16 22 103 Marino, Lin, Kelly, Boyce 22 18 103 Peterson, Lin, Kelly, Stravitz 18 19 103 Peterson, Lin, Kelly, Stravitz, Newbold 19 20, 21 103 Peterson, Lin, Kelly, 20, 21 Appeal 2021-004223 Application 15/916,806 10 Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed Stravitz, Harding Overall Outcome 1-6, 8-12, 14-16, 18-22 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