Appeal 2006-2827
Application 09/883,893
contained in the nasal passages is not as loose and easy to expel in the dry areas of
the bathroom as it is in the areas that are moister and wetter, such as a shower,
bathtub, sauna or steam room.”). The Examiner’s justification to combine Yates
with Wilson thus is based on impermissible hindsight analysis. KSR, 127 S.Ct. at
1742, 82 USPQ2d at 1397.
The Examiner further found that “Wilson '085 expressly describes its fixture
as being mountable in a shower or bathtub stall: Wilson '085 discloses contents
including tissue dispensers and portable accessories.” (Answer 6-7). In response
to the latter statement, the Appellant argues that
To the extent that such a statement is intended to imply
that Wilson discloses to place a toilet tissue dispenser in
a shower or bathtub stall, the statement is incorrect. The
type of dispenser that Wilson describes as being
mountable in a shower or bathtub is a soap dispenser (see
column 2, lines 35-39 and 41-46). Wilson also discloses
a toilet tissue dispenser but does not disclose mounting it
at a bathtub or shower stall.
(Reply Br. 1).
Wilson teaches “a multifunction bathroom device that may be utilized either
(1) to provide a water-resistant closure for soap used in the bathtub or shower; or
(2) in the bathroom as a bathroom tissue cover to provide a water-resistant closure
for the bathroom environment.” (Finding of Fact 4) (emphasis and numbering
added). Appellant is correct that Wilson does not teach locating the multifunction
bathroom device in the shower as a bathroom tissue cover. When mounted in the
shower, Wilson teaches the multifunction device is a soap dispenser not a tissue
dispenser. Wilson makes no other mention of tissue in connection with the
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