Ex Parte Adler et al

Patent Trial and Appeal BoardAug 29, 2017

13396973 (P.T.A.B. Aug. 29, 2017)

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. 13/396,973 02/15/2012 Franz ADLER CM3618Q 2296 27752 7590 08/31/2017 THE PROCTER & GAMBLE COMPANY Global IP Services Central Building, C9 One Procter and Gamble Plaza CINCINNATI, OH 45202 EXAMINER NEWHOUSE, NATHAN JEFFREY ART UNIT PAPER NUMBER 3782 NOTIFICATION DATE DELIVERY MODE 08/31/2017 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 pair_pg @ firsttofile. com mayer.jk @ pg. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FRANZ ADLER and RONALD WIENZIERS Appeal 2016-000965 Application 13/396,973 Technology Center 3700 Before JOHN C. KERINS, LEE L. STEPINA, and SEAN P. O’HANLON, Administrative Patent Judges. O’HANLON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2016-000965 Application 13/396,973 STATEMENT OF THE CASE Franz Adler and Ronald Wienziers (Appellants)1 appeal under 35 U.S.C. § 134 from the Examiner’s November 13, 2014, final decision (“Final Act.”) rejecting claims 1—4 and 6—15 under 35 U.S.C. § 103(a) as being unpatentable over Hicks (US 2006/0191933 Al, published Aug. 31, 2006) and Giblin (US 2005/0145655 Al, published July 7, 2005).2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM. SUMMARY OF THE INVENTION Appellants’ disclosure is directed to a flip closure for sealing a container. Spec. 1. Claim 1, the sole independent claim, is reproduced below from page 8 (Claims Appendix) of the Appeal Brief: 1. A container having a flip closure for sealing a container, said container being ajar comprising a product, and enabling manually to remove said product from said jar, the flip closure being provided for sealing said container comprising: a first part with an outer circumferential first sealing element, and a second part with an outer circumferential second sealing element, the first part connected to the second part by a hinge which allows rotational movement of one of the two parts around an axis into an open or a closed position of the flip closure, the second sealing element divided into a hinge region and a non-hinge region, wherein in the hinge region a height of 1 The Appeal Brief identifies The Procter & Gamble Company as the real party in interest. Appeal Br. 1. 2 Claim 5 is withdrawn. Final Act. 1. 2 Appeal 2016-000965 Application 13/396,973 the second sealing element is adapted to the rotational movement, the first sealing element which in the closed position engages with the second sealing element provides a form-fit, the second sealing element in the non-hinge region has a height which is greater than the height in the hinge region wherein said flip closure has a diameter of at least 40 nm. ANALYSIS The Examiner finds that Hicks discloses a container having a flip closure (closure 30)3 substantially as recited in claim 1, including, inter alia, a first part (lid 34) with a first sealing element (closure flange 100) and a second part (peripheral wall or closure base or body 32) with a second sealing element (peripheral wall or spout 50). Final Act. 2. The Examiner finds that “Hicks does not disclose the second sealing element divided into a hinge region and a non-hinge region,” but relies on Giblin to teach these features. Id. at 2—3. Specifically, the Examiner finds that Giblin discloses a second sealing element (pour spout 46) divided into a hinge region (open region 52) and a non-hinge region (“the full portion of the second sealing element 46”). Id. at 3. The Examiner reasons that it would have been obvious to one of ordinary skill “to modify the closure system of Hicks . . . with the elevated non-hinge region of Giblin in order to improve the pouring capacity of the closure.” Id. Appellants traverse, first arguing that “Hicks in view of Giblin only disclose[s a] bottle for pouring a liquid wherein Giblin only discloses bottles for pouring a liquid since the flip closure is already defined as having a pour 3 Parentheticals refer to the terminology of the cited references. 3 Appeal 2016-000965 Application 13/396,973 spout 46. The pour spout of Giblin is nowhere provided as a sealing element.” Appeal Br. 5. Similarly, Appellants assert that “there is no disclosure, suggestion or motivation that [Giblin’s] pour spout 46 provides sealing benefit or would be combined with Hicks as a second sealing element to provide improved sealing.” Id. at 6. Thus, Appellants assert, the rejection is “a hindsight reconstruction of the prior art.” Id.', see also Reply Br. 2-3. We are not persuaded by Appellants’ arguments. Initially, we note that the Examiner’s rationale for modifying Hicks’s flip closure based on the teachings of Giblin is “to improve the pouring capacity of the closure,” not to provide improved sealing. See Final Act. 3. Thus, Appellants’ arguments are not responsive to the rejection as set forth by the Examiner. Nonetheless, we address Appellants’ arguments and find them unpersuasive because, as correctly noted by the Examiner, Giblin discloses that “[cylindrical rim 66 [of cap portion 60] is sized accordingly so that it fits securely within pour opening 50 in floor 44, such that the cylindrical rim 66 acts as a plug and forms a releasable seal with floor 44” and, “[pjreferably, cylindrical rim 66 is sized such that it also touches the inside surface 54 of the pour spout 46 as cap portion 60 is moved from the open position to the closed position.” Giblin 127 (italic emphases added); see also Ans. 4 (citing Giblin 127). Thus, Appellants’ arguments fail to persuade us that Giblin’s spout is not a sealing element. We are also not persuaded that the Examiner’s rejection is based on hindsight, because the Examiner states a rationale for the modification that we determine is supported adequately by sufficient facts. See In re Cree, 4 Appeal 2016-000965 Application 13/396,973 818 F.3d 694, 702, n.3 (Fed. Cir. 2016); see also Giblin 126 (“The open region 52 in spout 46 enables the flip top closure of the present invention to have a larger pour opening with a spout as the open region enables the cylindrical rim 66 on the cap to have enough clearance for the cap to close.”). We further note that both Hicks and Giblin disclose dispensing products by pouring. See, e.g., Hicks 1 82 (“the spout 50 . . . defines a product discharge direction that is generally perpendicular to the container opening through which the product can be removed (by pouring, scooping, lifting out, etc.)”), Giblin 126 (discussing pour spout 46 and anti-drip lip 56). Appellants next argue that if one of skill in the art were to combine Hicks and Giblin, “the pour spout (46) of Giblin would sit on top of the peripheral wall (32) of Hicks, as taught by Giblin, and would not provide a second part with an outer circumferential second sealing element as required in Claim 1.” Appeal Br. 6 (emphasis omitted); see also Reply Br. 3. We are not persuaded by Appellants’ argument because: The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellants’ argument fails to apprise us of error, as the Examiner does not propose to bodily incorporate Giblin’s pour spout 46 into Hicks’s closure 30, but, rather, to modify 5 Appeal 2016-000965 Application 13/396,973 Hicks’s peripheral wall/spout 50 to include a greater height in the non-hinge region to improve pouring capacity. See Final Act. 3, 8—9; Ans. 4. Finally, Appellants argue that “the present invention is specifically directed to enabling manually to remove said product from said jar wherein said flip closure has a diameter of at least 40 nm” and “the present invention claims are directed to sealing a container as supported by the specification which discloses the present invention provides improved sealing.” Appeal Br. 6-7; see also Reply Br. 4. We find Appellants’ arguments to be unclear, and, therefore, the arguments fail to apprise us of error. To the extent Appellants argue patentability based on the diameter of the flip closure being sized to allow products retained within the jar to which the flip closure is attached, we note that Hicks discloses such product removal. See, e.g., Hicks 170. Regarding Appellants’ reference to sealing, Appellants are directed to the discussion above. Additionally, although claims are to be interpreted in light of the specification, limitations are not to be read into the claims from the specification. See Sjolund v. Musland, 847 F.2d 1573, 1581 (Fed. Cir. 1988). Finally, to the extent that Appellants argue that the Examiner’s rationale to modify Hicks based on the teachings of Giblin is improper because it does not address Appellants’ disclosed improved sealing, the argument is unpersuasive of error because “[i]n determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls. What matters is the objective reach of the claim.” KSR Int’l v. Teleflex, Inc., 550 U.S. 398, 419 (2007). 6 Appeal 2016-000965 Application 13/396,973 Accordingly, for the foregoing reasons, we sustain the rejection of claim 1 and its dependent claims 2-4 and 6—15, which are not argued separately, as being unpatentable over Hicks and Giblin. Reply Brief Appellants attempt to amend claim 1 in the Reply Brief. Reply Br. 1, 6. Such amendment is improper and is not entered. See 37 C.F.R. § 41.33(c). Appellants present a new argument in the Reply Brief that was not made in the Appeal Brief. See Reply Br. 3^4 (regarding Hicks’s spout 50). This argument is untimely and will not be considered, as Appellants fail to show good cause as to why the argument could not have been timely presented in the Appeal Brief. See 37 C.F.R. § 41.41(b)(2). We further note that the absence of any opportunity for the Examiner to respond to this untimely argument precludes meaningful appellate review. DECISION The Examiner’s decision to reject claims 1—4 and 6—15 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)(l)(iv). AFFIRMED 7