Ex Parte Dziersk et al

Patent Trial and Appeal Board

Mar 31, 2016

12896298 (P.T.A.B. Mar. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/896,298 10/01/2010 Mark Dieter DZIERSK
201 7590 04/04/2016
UNILEVER PATENT GROUP
800 SYLVAN A VENUE
AG West S. Wing
ENGLEWOOD CLIFFS, NJ 07632-3100
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
F6268US 9412
EXAMINER
PANCHOLI, VISHAL J
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
04/04/2016 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):
patentgroupus@unilever.com
pair_unilever@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK DIETER DZIERSK, JAMES A. SHOEMAKER,
OLIVIER FRANCK CURRAT, and HARRY BOER
Appeal2014-000463
Application 12/896,298
Technology Center 3700
Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and
MARK A. GEIER, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2014-000463
Application 12/896,298
STATEMENT OF THE CASE1,2
Mark Dieter Dziersk, et al. (Appellants) appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision to reject under 35 U.S.C. § 103(a):
(1) claims 2, 4, 5, 6, 9, 11, 12, 15, 16, 19, and 21 as unpatentable over Rohr
(US 5,271,531; iss. Dec. 21, 1993) and De Wree (US 2008/0029548 Al,
pub. Feb. 7, 2008); (2) claims 7 and 8 as unpatentable over Rohr, De Wree,
and Pugne (US 2007/0251079 Al, pub. Nov. 1, 2007); and (3) claims 13 and
14 as unpatentable over Rohr, De Wree, and Wilcox (US 5,263,787, iss.
Nov. 23, 1993). Claims 1, 3, 10, 17, 18, and 20 have been canceled. We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 In the STATUS OF AMENDMENTS AFTER FINAL section at page 2 of
the Reply Brief, Appellants state:
A Reply after the Final Rejection had been filed on April 16,
2013, with claim amendments, which were entered. The
"u:rJ<:no\~1n" reasons (described in the Examiner's 1A1ns\~1er in the
Response to Arguments section) as to why the April 16, 2013
response, although timely received by the USPTO, was not
timely forwarded to the Examiner should be construed
unfavorably to the USPTO position here, at least because it left
Appellant without the benefit of a timely Advisory Action and
because it goes against the principle of compact prosecution.
We note that entry or non-entry of amendments is not an appealable matter,
but rather is a petitionable matter, and thus is not within the jurisdiction of the
Board. See In re Berger, 279 F.3d 975, 984 (Fed. Cir. 2002); see In re
Mindick, 371F.2d892, 894 (CCPA 1967).
2 We note that the Examiner states, "An amendment after final rejection was
filed on 0411612013 by [Appellants]. The amendment cancelled independent
claim 1 which was twice rejected and added an identical claim 21. The
amendment and arguments were entered and placed in the file but did not
result in any allowable subject matter. The [E]xaminer further pointed out
that newly added independent claim 21 would be rejected similarly to the
rejection of claim 1." Ans. 3.
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CLAIMED SUBJECT MATTER
The claimed subject matter relates to "a bottom opening dispenser
which comprises a squeeze container holding a viscous food product and a
cap stand by means of which the dispenser can be positioned according to an
inverted posture." Spec. 1, 11. 7-9; Figs. 1---6. Claim 21, the sole
independent claim, is representative of the claimed subject matter and
recites:
21. A food dispenser comprising:
(a) a squeeze container holding a viscous food product,
said squeeze container having a bottom opening;
(b) a spout member connected to the container over the
bottom opening thereof, said spout member having a spout
opening through which the viscous food product is
discharged; wherein the spout member is nontransparent;
( c) a cap stand comprising a collar which is located around
the spout member and which is connected to the container
and/or the spout member, a shield which extends between
the spout member and the collar; a cap and a hinge that
connects said cap to said collar, said cap stand being
transferrable between a closed position in which the spout
opening and the cap are closed, and an open position in
which the spout opening and the cap are open for
discharge of the viscous food product, and said cap having
a foot so that a stable support is provided for the dispenser
in the dosed position of the cap;
wherein said viscous food product is a product having a viscosity
at 20°C and a shear rate of 10 s-1 of at least 1.0 Pa.s selected
from the group consisting of mayonnaise, ketchup, and mustard;
wherein an internal width dimension of the bottom end of the
collar is at least 2 times larger than an external width dimension
of the bottom end of the spout member; and
wherein at least a part of said collar is transparent so that a user
can observe said discharge of viscous food product from the
spout member.
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ANALYSIS
Obviousness over Rohr and De Wree
Claims 2, 4, 5, 6, 9, 11, 12, 15, 16, 19, and 21
Appellants separately argue claims 2, 19, and 21 and make no
additional arguments for claims 4, 5, 6, 9, 11, 12, 15, and 16. App. Br. 8-14.
We separately address each of claims 2, 19, and 21. Regarding claims 4, 5,
6, 9, 11, 12, 15, and 16, we select claim 21 as representative thereof. See 37
C.F.R. § 41.37(c)(l)(iv) (2015). In other words, claims 4, 5, 6, 9, 11, 12, 15,
and 16 stand or fall with claim 21.
Claim 21
The Examiner finds that Rohr discloses many of the elements of claim
21, including "wherein an internal width dimension of the bottom end of the
collar is larger than an external width dimension of the bottom end of the
spout member." See Final Act. 4; Ans. 5 (citing Rohr, Figs. 1, 2, 11). The
Examiner further finds that: "De Wree teaches [a] bottom dispensing
squeeze container where the bottom dispensing container or parts thereof
may be at least partially or totally transparent." See Final Act. 4; Ans. 5
(citing De Wree, para. 23). The Examiner concludes it would have been
obvious to one of ordinary skill in the art at the time the invention was made
to have provided a transparent collar as a part of the cap for
varous [sic] asthetic [sic] purposes or to provide an indicia to a
user of the dispensing stages of the device and to form the bottom
end of the collar at least 2 times larger [than] the bottom end of
the spout member since it has been held that discovering an
optimum value of a result effective variable involves only routine
skill in the art.
Final Act. 4--5; Ans. 5-6 (citing In re Boesch, 617 F.2d 272 (CCPA 1980)).
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Appellants contend that Rohr fails to disclose "a spout member".
App. Br. 11. Appellants further contend:
[Rohr] does not teach a dispenser of the bottom opening type as
defined in present claim 1 (dispenser comprising 'container
having a bottom opening' and 'cap stand'). [Rohr] is just
concerned with a self-sealing valve closure mechanism ... the
description of Fig. 1 at col. 3 of Rohr states that the lid is optional,
which negates any intention to use it as a cap stand. Accordingly,
Rohr fails to disclose a cap stand.
Id. at 12; see also Reply Br. 6.
Appellants' arguments are not persuasive. At the outset, regarding
Rohr disclosing an optional cap, it is well settled that a reference disclosure
is not limited only to its preferred embodiments, but is available for all that
it discloses and suggests to one of ordinary skill in the art. In re Lamberti,
545 F.2d 747, 750 (CCPA 1976). In short, one skilled in the art is able to
read a reference for all that it teaches and not limit a reference to its
preferred embodiment. Beckman Instruments, Inc. v. LKB Produkter AB,
892 F.2d 1547, 1551 (Fed. Cir. 1989); see also In re Chapman, 357 F.2d
418,424 (CCP A 1966) ("A reference can be used for all it realistically
teaches, and is not limited to the disclosures in its specific illustrative
examples."). In this case, the Examiner finds that Rohr discloses a
container "having a bottom opening (figure 2); a spout member (figure 2)
connected to the container over the bottom opening thereof" and "a cap
stand (body, item 50, figure 2)." Final Act. 4; see also Ans. 5. The
Examiner further finds that in Figures 1 and 2 of Rohr "it is shown that the
flat surface of the cap acts as a cap stand when the dispenser is turned
upside down while also acting as a bottom dispenser. Figure 2 of Rohr
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clearly shows a spout member with an opening." Final Act. 9-10.
Appellants do not provide any persuasive evidence or argument apprising
us of error in the Examiner's findings and conclusions such as when Rohr's
device is inverted.
Further, in response to Appellants' arguments, the Examiner finds:
Rohr shows a dispensing closure with a flat base that can be
attached to a squeeze container and the container and the
dispensing closure are fully capable of dispensing a food product
from its bottom side if turned upside down. . . . Although Rohr
only mentions "personal care products such as shampoo, lotions
etc.", the contents being dispensed from the container is not
relevant as an apparatus claim must distinguish the claimed
subject matter from the prior art by structure and not by contents
being dispensed (see MPEP § 2115). One of ordinary skill in the
art would be able to use the container and dispensing closure of
Rohr to successfully dispense a viscous food product. The
dispensing closure comprises a flat cap which constitutes a cap
stand and the container is capable of resting on a flat surface.
Also, figures 2 and 3 of Rohr show an annular chamber 140 in
the dispensing closure. Thus, Rohr teaches a bottom opening, a
cap stand, a viscous food product and an annular chamber.
Ans. 12 (citing Figure 2 of Rohr at Ans. 11). Appellants do not provide
any persuasive evidence or argument apprising us of error in the
Examiner's findings and conclusions. Nor do Appellants persuade us that
the Examiner's findings and conclusions are not based upon a rational
underpinning.
Appellants further list numerous limitations recited in claim 21 and
contend that they are lacking in Rohr. See Appeal Br. 12; see also Reply Br.
6-7. Such an argument is insufficient to apprise us of error in the rejection.
See 37 C.F.R. § 41.37(c)(l)(iv) ("A statement which merely points out what
a claim recites will not be considered an argument for separate patentability
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of the claim."); see also Jn re Lovin, 652 F.3d 1349, 1356-57 (Fed. Cir.
2011).
Appellants also contend that the Examiner has provided no motivation
for including a transparent collar with an upside down squeeze container.
App. Br. 8; see also Reply Br. 3, 8-9. In particular, Appellants assert that
"[t]here is nothing necessarily 'aesthetic' about a transparent collar. Also,
regarding the indicia, that is the actual motivation behind the present
invention, so it is only with hindsight and by way of a merely conclusory
statement that such motivation may be stated to combine elements from
completely different references." App. Br. 8; see also Reply Br. 3, 8-9.
Similarly, Appellants contend that "De Wree is random about which parts of
the package are transparent," (App. Br. 13) that "no guidance or uniqueness
for transparency is stated," (Id.) that "no apparent advantages are indicated
for use of the transparent cap," (Id.) and that De Wree "does not provide any
incentive to use such a transparent cap (Id. at 14). See Reply Br. 7.
Appellants' arguments are not persuasive. At the outset, to the extent
that Appellants' arguments are holding the Examiner to the old teaching,
suggestion, or motivation ("TSM") standard where there must be some
suggestion or motivation, either in the references themselves or in the
knowledge generally available to one of ordinary skill in the art, to modify
the reference or to combine reference teachings; such a standard is not
required. KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 415 (2007) ("We
begin by rejecting the rigid [application and requirement of a TSM to
combine known elements in order to show obviousness]."). The proper
inquiry is whether the Examiner has articulated adequate reasoning based on
a rational underpinning to explain why a person of ordinary skill in the art
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would combine Rohr and De Wree. See id. at 418 (stating that "rejections
on obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness" (citing In re
Kahn, 441F.3d977, 988 (Fed. Cir. 2006)). Moreover, to the extent that
Appellants are arguing the references must be capable of bodily
incorporation in order to combine their teachings, the test for obviousness is
not whether the features of a secondary reference may be bodily
incorporated into the structure of a primary reference. In re Keller, 642 F .2d
413, 425 (CCPA 1981). "Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill in the art." Id.
(citations omitted); see also Ans. 12-13.
In this case, the Examiner relies on De Wree merely "to show that
various components of a dispensing container can be made transparent."
Ans. 12; see also Final Act. 4; Ans. 5, 11, 13. Paragraph 36 (emphasis
added) of De Wree states:
In one embodiment, the deformable container may be at least
partially, more specifically totally transparent or translucent. In
another embodiment, the deformable container may be at least
partially, more specifically totally opaque. In another
embodiment, the deformable container is substantially opaque
and contains a transparent or translucent portion or window
which is capable of providing information on how much
flowable composition is present in the bottom dispensing
package. This transparent or translucent portion or window may
be of any suitable size or shape as long as it provides enough
information on how much jlowable composition is present in the
bottom dispensing package.
Paragraph 36 of De Wree thus provides ample motivation for
rendering a portion of a squeeze container, including the cap or collar
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thereat: transparent, namely, for "providing information on how much
flowable composition is present in the bottom dispensing package." As
such, we agree with the Examiner that "De Wree teaches and provides
motivation to make parts of the dispenser transparent." Ans. 13; see also id.
at 12. In summary, Appellants' arguments are not persuasive that the
Examiner's stated reason for combining Rohr and De Wree (see Final Act.
4--5; see also Ans. 5-6) is insufficient.
Regarding Appellants' hindsight argument, we are not persuaded.
The Examiner cites teachings in the references, not Appellants' disclosure,
in articulating reasons for combining the references as proposed in the
rejection. See Final Act. 4--5; see also Ans. 5---6, 11.
As for the limitation in claim 21 concerning the relative sizes of the
bottom ends of the collar and the spout, Appellants assert: "[De Wree] does
not show an internal width dimension of the bottom end of the collar is at
least 2 times larger than an external width dimension of the bottom end of
the spout member as specified in [claim 21]." App. Br. 13-14; see also
Reply Br. 7-8.
In response to Appellants' argument, the Examiner clarifies that "De
Wree is not relied upon" for the dimensions of the claim. Ans. 13. The
Examiner further clarifies his position with respect to the dimensions of the
claim by stating:
[T]he bottom width dimension to height dimension ratio is a
design choice variable and modifying these values changes the
basic shape and size of the dispensing closure. One of ordinary
skill in the art would manufacture the dispensing closure with
appropriate dimensions for the height and the width based on
his/her preferences and the function of the device. Furthermore,
it would be obvious to one of ordinary skill in the art to change
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the height and width dimensions, since it has been held that
discovering an optimum value of a result effective variable
involves only routine skill in the art. In re Boesch, 617 F.2d 272,
205 USPQ 215 (CCPA 1980).
Ans. 13. Appellants do not provide any persuasive evidence or argument
apprising us of error in the Examiner's findings and conclusions, or that
altering the dimensions of the cap is not reasonably based on the shape and
size of the dispensing device. See Reply Br. 7-8. In other words,
Appellants do not persuade us that the recited dimensions provide an
unexpected result.
Accordingly, for the foregoing reasons, we sustain the Examiner's
rejection of claim 21 as unpatentable over Rohr and De Wree. We likewise
sustain claims 4, 5, 6, 9, 11, 12, 15, and 16, which fall with claim 21.
Claim 2
As for claim 2, the Examiner finds: "Regarding claim 2, Rohr teaches
an annular chamber (annular channel, item 140, figure 2) is defined
between the spout member and the collar." Final Act. 5; see also Ans. 6.
According to Appellants: "Rohr fails to disclose an annular chamber
as claimed in present claim 2." App. Br. 12; see also Reply Br. 6.
Inspection of Figure 2 of Rohr reveals an annular chamber identified
by reference numeral 140 as noted by the Examiner. Final Act. 5; see also
Ans. 6. As such, we agree with the Examiner concerning this finding and
are not persuaded by Appellants' contentions to the contrary. See App. Br.
12. Accordingly, we sustain the Examiner's rejection of claim 2 as
unpatentable over Rohr and De Wree.
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Claim 19
In regard to claim 19, Appellants assert:
Further regarding claim 19, ... the Examiner has provided no
basis for how or why the ratios or the percentages are "result
effective variables." The Examiner does not explain what is a
result effective variable and how it causes arrival at the present
invention. Appellants respectfully submit that, the Examiner's
position notwithstanding, that is not the case here. [De Wree]
does not show or suggest the ratios or percentages.
App. Br. 14 (emphasis omitted); see also Reply Br. 9.
At the outset, the Examiner clarifies that "De Wree is not relied upon"
for the dimensions of the claim. See Ans. 13; see also Reply Br. 9. The
Examiner further clarifies his position with respect to the significance of the
dimensions of the cap as set forth in claim 19 in the Answer, stating:
Moreover, on page 5, lines 18-31 of the specification recite that
"the cap stand may have any shape, for instance a cylindrical
shape. In particular, the cap stand may have a non-cylindrical
shape ... the ratio of a bottom width dimension B 1, B2 to height
dimension H of the cap stand may be in range of 1: 1 to 3: 1."
Thus, the recitation supports examiner's assertion that it would
be obvious to manufacture a cap stand with appropriate width
and height dimensions since it is only a matter of design choice.
Ans. 13-14; see In re Chu, 66 F.3d 292, 298-99 (Fed. Cir. 1995) (holding
that "design choice" is appropriate where the applicant fails "to set forth any
reasons why the differences between the claimed invention and the prior art
would result in a different function or give unexpected results") (citing In re
Rice, 341 F .2d 309 (CCP A 1965). Here, Appellants have not demonstrated
why the claimed dimensions of the cap would result in a different function
or give unexpected results. Accordingly, we sustain the Examiner's
rejection of claim 19 as unpatentable over Rohr and De Wree.
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Obviousness over Rohr, De Wree, and Pugne
Claims 7 and 8
As for claims 7 and 8, the Examiner finds that
Pugne teaches a releasable seal that closes the bottom opening
between the neck and spout member (film seal, item 32, figure
1 ).
It would have been obvious to one of ordinary skill in the
art at the time the invention was made to have provided a seal
that closes the bottom opening between the neck of the container
and the spout member in the device of Rohr to provide an anti-
temper means and to prevent accidental spilling or dispensing of
material during transportation.
Final Act. 8; see also Ans. 8.
Appellants acknowledge that Pugne is cited for its film seal but assert
that Pugne fails to teach a spout member and the invention must be viewed
as a whole. App. Br. 15; see also Reply Br. 11.
Appellants' argument is not persuasive because Appellants' argument
is an attack on the references individually rather than a challenge to the
Examiner's combination of the teachings of Rohr, De Wree, and Pugne. See
Final Act. 7-8; see also In re Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986);
In re Keller, 642 at 413 (one cannot show nonobviousness by attacking
references individually where the rejections are based on combinations of
references). Further, in response to Appellants' argument, the Examiner
elaborates on his findings concerning Pugne:
Firstly, Pugne reference is relied upon to teach a releasable film
seal attached to the opening of the dispensing container. Pugne
teaches a releasable film seal attached to the opening of the
dispensing container as shown in figure 1 and as recited in
paragraph [0025]. Also, the Examiner would like to point to
figures 1 and 2 of Pugne to show that Pugne indeed teaches a
spout structure (see figure below). In figure 1, walls 52 [] of the
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dispensing closure slope upwards from the outer periphery of the
closure and form a spout like structure from which a dispensable
product is dispensed.
FJG.l.
Ans. 14--15 (emphasis added) (citing an annotated version of Figure 1 of
Pugne)(see Pugne, para. 10 "FIG. 1 is a fragmentary sectional view of a
package that includes a dispensing closure in accordance with one presently
preferred embodiment of the invention."); see also Final Act. 8.
We agree with the Examiner that Pugne not only discloses a spout
member but also a releasable seal disposed between the neck of the
container and the spout member. Appellants do not provide any persuasive
evidence or argument to the contrary. See Reply Br. 11. We therefore
sustain the Examiner's rejection of claims 7 and 8 as unpatentable over
Rohr, De Wree, and Pugne.
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Obviousness over Rohr, De Wree, and Wilcox
Claims 13 and 14
With regard to Wilcox and its applicability to claims 13 and 14, the
Examiner finds:
Wilcox teaches a bottom dispensing container with a cap stand
comprising mutually perpendicular top with dimensions and
mutually perpendicular bottom width dimensions (figure 6) and
that at least of one of said top with dimensions is smaller than the
corresponding bottom width dimensions (figure 7).
Final Act. 9; see also Ans. 9.
From this finding the Examiner concludes:
It would have been obvious to one of ordinary skill in the
art at the time the invention was made to have modified the cap
stand of Rohr in a way such that at least one of at least one of
said top width dimensions being smaller than the corresponding
bottom width dimension since this type of cap stand strucure [sic]
will provde [sic] stability when the dispensing contianer [sic] is
stored on a surface. It would also have been obvious to form the
bottom width dimensions and top width dimensions with a ratio
of 2: 1 to 1.1: 1 since it has been held that where the general
conditions of a claim are disclose [sic] in the prior art,
discovering the optimum or workable ranges involves only
routine skill in the art.
Id. (citing In re Aller, 220 F.2d 454 (CCPA 1955)); see also Ans. 9.
Appellants contend that Wilcox is non-analogous art, specifically a
holder for holding a craft paint applicator, which would only motivate a
person of ordinary skill in the art to modify the cap of Rohr through the
benefit of hindsight. App. Br. 15-17; see also Reply Br. 14. According to
Appellants: "[Wilcox] is cited as showing bottom dispensing closure that has
a larger diameter at the bottom than top. [Wilcox] states that D 1 is the
largest diameter and D2 is a smaller diameter (col. 8, lines 10-12)." Id. at
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16; see also Reply Br. 13.
Appellants' arguments are not persuasive. The dimensions D 1 and
D2 cited therein of Wilcox refer to the major and minor axial dimensions (or
diameters) of the oval shaped paint applicator bottle 50 (see Wilcox, Fig. 5)
and not the cap holder 60 which supports the paint applicator in an inverted
position. However, Wilcox does make clear that the bottom of the cap
holder 60 is larger in size than the top thereof, not only in Figures 5, 7 and 8,
but also in the text of the document itself, namely:
The lower end of exterior portion 62 of cap holder 60 forms a
circular base 68 to support cap holder 60 on a surface S. In the
preferred embodiment, circular base 68 has a diameter
substantially equal to the largest diameter Dl, illustrated in FIG.
5, of the oval shaped applicator bottle 52. In the preferred
embodiment, the diameter of the top 70 of cap holder 60 is
greater than the smaller diameter D2 of the oval applicator and
smaller than the diameter of the base 68.
Wilcox, col. 5, 11. 35--44 (italics added).
The foregoing passage from Wilcox is consistent with the Examiner's
findings set forth in the Final Action, supra, and those articulated in the
Answer, namely:
This variation in dimensions is provided so the cap can support
the upside-down orientation of the dispensing container when
stored on a flat surface. Thus, Wilcox successfully teaches the
various dimension ratios in height and width of the cap and also
provides a motivation to do so. One of ordinary skill in the art
would be able to modify the cap of Rohr as taught by [Wilcox]
to arrive at the invention as recited in the claims. Moreover,
discovering optimum or workable ranges involve only routine
skill in the art (see MPEP §2144.05 (ii) (A)).
Ans. 16.
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As for Appellants' contention that Wilcox is non-analogous art
(Appeal Br. 16; Reply Br. 14), the Examiner states:
It has been held that a prior art reference must either be in the
field of appellant's endeavor or, if not, then be reasonably
pertinent to the particular problem with which the appellant was
concerned, in order to be relied upon as a basis for rejection of
the claimed invention. See In re Oetiker, 977 F.2d 1443, 24
USPQ2d 1443 (Fed. Cir. 1992). In this case, Wilcox teaches a
paint applicator comprising a container and a cap for the
applicator (see figures 5-8, Wilcox). The cap is fully capable of
dispensing food product and Wilcox does not explicitly need a
recitation of a food product being dispensed to qualify the prior
art as analogous. The applicator of Wilcox comprises a cap
which acts as a stand when the applicator is turned upside down
and the cap fully supports the container on a flat horizontal
surface.
Ans. 15.
The Examiner has sufficiently established that Wilcox qualifies as
analogous art in that it pertains to a cap holder which is capable of
suspending a squeezable viscous fluid container in an inverted position. In
addition, with specific reference to claim 14, the Examiner has shown that
the general conditions of that claim are disclosed in the prior art (Wilcox).
When those conditions are met, In re Aller holds that discovering the
optimum or workable ranges involves only routine skill in the art. See also
MPEP § 2144.05 (II)(A).
Accordingly, for the foregoing reasons, we sustain the Examiner's
rejection of claims 13 and 14 as being unpatentable over Rohr, De Wree, and
Wilcox.
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DECISION
We AFFIRM the decision of the Examiner to reject claims 2, 4--9, 11-
16, 19, and 21.
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
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