Ex Parte Gibson et al

Patent Trial and Appeal Board

Jan 30, 2017

11994869 (P.T.A.B. Jan. 30, 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.
11/994,869 06/06/2008 David J. Gibson ICC-297A/PCT/US 2208
31217 7590
Henkel Corporation
One Henkel Way
Rocky Hill, CT 06067
EXAMINER
NICHOLS II, ROBERT K
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
02/01/2017 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):
rhpatentmail @henkel. com
trish.russo@henkel.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID J. GIBSON and GEOFFREY F. SEYMOUR
Appeal 2015-002035
Application 11/994,869
Technology Center 3700
Before BRETT C. MARTIN, THOMAS F. SMEGAL, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants, David J. Gibson et al.,1 appeal under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 1—21, 26, and 27.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Appellants identify Henkel IP & Holding, GmbH as the real party in
interest. Appeal Br. 2.
2 Claims 22—25 are cancelled. Appeal Br. 24 (Claims App.).
Appeal 2015-002035
Application 11/994,869
THE CLAIMED SUBJECT MATTER
The claims are directed to “a container for holding and dispensing a
curable product.” Spec. 1:6—7. Claims 1,3, and 20 are the independent
claims. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A container suitable for dispensing dispensable curable
products comprising:
a container body which forms an internal reservoir for
holding the product;
a dispensing aperture provided in the container body; and
the container body comprising, a base, opposing front and rear
walls on the base and resiliently deformable opposing side walls
which bias said front and rear walls apart, each side wall
intermediate the front and rear walls and on the base, each of the
front, rear and side walls having a respective top opposite the
base, a neck containing the dispensing aperture, and a tapered
shoulder portion connecting the neck with respective tops of the
front, rear and side walls, and the container body being
squeezable to allow dispensing of the product through the
aperture;
each side wall having a sigmoidal or sinuous curved
profile along its path between the front and rear walls, the
sigmoidal or sinuous curved profile including first and second
convex lobe portions adjacent the front and rear walls,
respectively, and a concave dished portion intermediate the first
and second convex lobe portions,
which curved profile is arranged to provide a substantially
linear relationship between the compressive force required to
move at least one of the front and rear walls toward the other and
the distance compressed, within a compressive dispensing range
of movement of said at least one of the front and rear walls, so
that a yield point is not reached, and
at least that part of the reservoir which is to hold the
product has a substantially consistent wall thickness.
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Appeal 2015-002035
Application 11/994,869
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Vuillemenot
Stahmer
Yamamoto
InDelicato
Kohn
Kasboske
US 2,571,504
US 3,395,836
US 5,156,303
US 5,357,985
US 5,819,991
US 6,170,712 B1
Oct. 16, 1951
Aug. 6, 1968
Oct. 20, 1992
Oct. 25, 1994
Oct. 13, 1998
Jan. 9, 2001
REJECTIONS
The Examiner made the following rejections:
1. Claims 1—10, 12—17, 20, 26, and 27 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Vuillemenot, Stahmer, and Kasboske.
2. Claim 11 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Vuillemenot, Stahmer, Kasboske, and Kohn.
3. Claim 25 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Vuillemenot, Stahmer, Kasboske, and Yamamoto.
4. Claims 18, 19, and 21 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Vuillemenot, Stahmer, Kasboske, and InDelicato.
5. Claims 26 and 27 stand rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite.
Appellants seek our review of these rejections.
ANALYSIS
The Rejections of Claims 1—21, 26, and 27 as Being Unpatentable
Independent claims 1 and 20 recite, in part, side walls having a
“curved profile [] arranged to provide a substantially linear relationship
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Application 11/994,869
between the compressive force required to move at least one of the front and
rear walls toward the other and the distance compressed, within a
compressive dispensing range of movement of said at least one of the front
and rear walls, so that a yield point is not reached.” Independent claim 3
recites, in part, a “container having a compressibility profile of curvature or
thickness, evidenced in that the ratio of the force required to compress the
container by moving at least one of the front and rear walls toward the other
to the amount of compression achieved remains relatively constant.” The
Examiner and Appellants disagree about whether Vuillemenot discloses
these disputed claim limitations.
The Examiner finds that column 2, lines 20—28 of Vuillemenot
discloses the disputed limitations in claims 1,3, and 20:
When a force is applied to the front and back walls 15 and 16
toward the interior of the bottle, as by squeezing these walls
between the thumb and fingers, the accordion pleats flex readily
and deform to decrease the interior volume of the bottle, and
when the pressure is released the walls readily return to their
normal position and the bottle reverts to its normal volume.
See Final Act. 4—5 (claims 1 and 3), 7 (claim 20). Referring to the claim 1
limitation, the Examiner asserts that “Vuillemenot discloses the side walls
being resiliently deformable opposing side walls which bias themselves
apart (col. 2, lines 26-28), thus, as the distance of compression increases, the
force required to continue compression will tend to increase in a
substantially linear fashion due to the resistance (or return force) of the
form-regaining plastic.” Ans. 13; see also id. at 14—15 (arguing that
Stahmer and Kasboske disclose the claim 1 limitation). Referring to the
claim 3 limitation, the Examiner further states that “as the distance of
compression increases, the force required to continue compression will
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Application 11/994,869
tend[] to increase in a substantially linear fashion due to the resistance (or
return force) of the form-regaining plastic itself.” Id. at 4—5 (citing to
Vuillemenot 2:20-28); see also Ans. 16—17.
In response to the Examiner’s findings, Appellants argue, with respect
to claim 1, that Vuillemenot discloses “a force which returns the bottle to its
normal volume after having been squeezed. What is not disclosed nor
suggested, however, is that Vuillemenot provides ‘a substantially linear
relationship between the compressive force required to move at least one of
the front and rear walls toward the other and the distance compressed.’”
Appeal Br. 7; see also Reply Br. 1—2. Appellants argue, with respect to
claim 3, that Vuillemenot does not disclose any “particular ratio of force to
compression.” Appeal Br. at 10; see also id. at 12 (arguing the cited prior
art is silent about “a particular relationship between a given recited
dispensing force and a given measured displacement of the side wall of the
container”).
Applicants are correct. Vuillemenot discloses that a resilient force
will return a bottle to its original shape after having been squeezed, but is
silent about the disputed limitations. With respect to the disputed limitation
in claims 1 and 20, for example, the Examiner does not identity any explicit
or inherent disclosure in Vuillemenot relating to (1) the amount of
compressive force required to move the bottle’s walls towards each other,
(2) the distance that the walls are compressed, (3) the existence of any
relationship between the compressive force and distance compressed, (4)
whether this relationship is substantially linear, or (5) the existence of a
“yield point.” Similarly, with respect to the disputed limitation in claim 3,
the Examiner does not identify any explicit or inherent disclosure in
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Vuillemenot relating to (1) the amount of force required to compress the
container’s walls towards each other, (2) the amount of compression
achieved between the container walls, or (3) whether the ratio between these
two factors is relatively constant. The Examiner’s findings regarding the
disputed limitations in claims 1,3, and 20 are conclusory, unsupported, and
merely repeat the language in the claims.
The Examiner does not find that the other cited prior art — Stahmer,
Kasboske, Kohn, InDelicato, or Yamamoto — cure the deficiencies of
Vuillemenot. Thus, the rejections of independent claims 1, 3, and 20, and
those claims which depend from claims 1,3, and 20, cannot be sustained.
The Rejections of Claims 26 and 27 as Being Indefinite
Claims 26 and 27 recite, in part, “wherein the first and second convex
lobe portions and the concave dish portion [are] each defined by a
substantially equal radius of curvature.” The Examiner determines that these
claims are indefinite because the Specification “is silent to the teaching of
the second convex lobe portions and the concave dish portion having an
equal radius of curvature” and “what range of activity is covered by the term
‘substantially.’” Final Act. 2—3.
Appellants assert that support for claims 26 and 27 may be found in
the Specification at page 5, line 14 through page 6, line 2; page 13, line 31
through page 14, line 15; and in Figures 5, 8, 9, and 12. Appeal Br. 6.
Neither these portions of the Specification nor any other portion of the
Specification, however, (1) discloses a definition of radius, (2) explicitly
discusses the radii of the convex lobe portions and concave dish portion, (3)
discusses any method to calculate the radii, or (4) discloses that the radii are
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Application 11/994,869
substantially equal. An ordinary meaning of “radius” is “a line segment
extending from the center of a circle or sphere to the circumference or
bounding surface.” Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/radius (last visited January 25, 2017). Thus, a non­
circular curved surface does not have one radius.
At page 5, line 31 through page 6, line 2, the Specification discloses
that the radius of front and rear walls 61, 62 may have a radius of about 40
mm or greater; in which case, walls 61, 62 form a curved surface. As front
and rear walls 61, 62 transition into convex lobe portions 80, and as convex
lobe portions 80 transition into concave dished portion 81, multiple non-
circular/non-spherical surfaces are formed. Because the Specification does
not disclose where each surface begins and ends and how to determine the
radii of these non-circular surfaces, the Examiner correctly determines that
claims 26 and 27 are indefinite. The rejection of claims 26 and 27 is
sustained.
DECISION
For the above reasons, the Examiner’s rejections of claims 1—21, 26,
and 27 under 35 U.S.C. § 103(a) are REVERSED.
The Examiner’s rejection of claims 26 and 27 under 35 U.S.C. § 112,
second paragraph, 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-IN-PART
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