Ex Parte Gill et al

Patent Trial and Appeal BoardAug 31, 2017

12889601 (P.T.A.B. Aug. 31, 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. 12/889,601 09/24/2010 Matthew T. Gill 082116.0327 6620 114699 7590 Baker Botts LLP 30 Rockefeller Plaza New York, NY 10112-4498 09/05/2017 EXAMINER CASTILLO, KEVIN CHARLES ART UNIT PAPER NUMBER 3781 NOTIFICATION DATE DELIVERY MODE 09/05/2017 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): DLNYDOCKET@BAKERBOTTS.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MATTHEW T. GILL, RAYMOND A. PRITCHETT JR., and TRAVIS A. HUNTER Appeal 2015-006973 Application 12/889,601 Technology Center 3700 Before BRETT C. MARTIN, JILL D. HILL, and THOMAS F. SMEGAL, Administrative Patent Judges. MARTIN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2015-006973 Application 12/889,601 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from the Examiner’s rejection of claims 1—3 and 5—22. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION Appellants’ claims are directed generally “to hot-fill containers” and more specifically “ribbed containers.” Spec. 11. Claim 1, reproduced below with emphasis added to the claim language at issue, is illustrative of the claimed subject matter: 1. A container comprising: a finish connected to a neck; a top portion located below the neck; a top bumper portion located below the top portion; a top rib located within and extending entirely about an outer circumferential perimeter of the top bumper portion and having a depth with respect to the circumferential perimeter of the top bumper portion; a body portion located below the top bumper; a bottom bumper located below the body portion and above a base portion of the container, wherein the bottom bumper comprises a bottom rib extending entirely about an outer circumferential perimeter of the bottom bumper and having a depth with respect to the circumferential perimeter of the bottom bumper; and wherein the body portion comprises at least one body rib extending entirely about an outer circumferential perimeter of the body portion, each body rib having a depth with respect to the circumferential perimeter of the body portion, the top rib and the bottom rib each having a greater depth than each body rib. 2 Appeal 2015-006973 Application 12/889,601 REFERENCE The prior art relied upon by the Examiner in rejecting the claims on appeal is: Nievierowski US 2008/0083696 A1 Apr. 10, 2008 REJECTION The Examiner made the following rejection: Claims 1—3 and 5—22 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Nievierowski. Ans. 2. ANALYSIS The only issue before us is whether the Examiner properly construed the phrase “at least one body rib extending entirely about an outer circumferential perimeter of the body portion” as this issue is dispositive of the Examiner’s rejections. App. Br. 8—16. Both Appellants and the Examiner appear to readily admit that Nievierowski fails to teach all features of the claims under the Appellants’ construction of the phrase at issue. Nievierowski shows body ribs, but those ribs are interrupted by an integrally formed handle so that the ribs do not extend around the entirety of the perimeter of the container. See Nievierowski, Fig. 1. The Examiner, however, construes the claim such that, as long as the entirety of the rib extends around the perimeter, the claim language is met. In other words, the rib does not have to extend all the way around in a continuous manner, but as long as all of the rib extends around the perimeter generally, even in an interrupted manner, then the claim language is met. The Examiner, as the Appellants point out, relies upon “a forced and 3 Appeal 2015-006973 Application 12/889,601 improper interpretation” of this claim language. App. Br. 4. The claims require that the rib “extend[] entirely about an outer circumferential perimeter.” As shown in Appellants’ Figures, the rib subject to this claim language is a continuous member and extends around the entire perimeter. In this case, upon reviewing the Specification, we do not understand that “extending entirely about an outer circumference]” refers to the extending of the rib vis-a-vis the rib, but rather describes the extending of the rib vis-a- vis the container. Accordingly, we construe the term “extending entirely about” to require that the rib must extend all the way around the container — i.e., “extend[] entirely” — and cannot be interrupted by, for example, an integral handle as shown in Nievierowski. Given that there is no dispute as to the teaching of Nievierowski, once this language is properly construed, Nievierowski clearly fails as an anticipatory reference. As such, we do not sustain the Examiner’s rejection. DECISION For the above reasons, we REVERSE the Examiner’s decision to reject claims 1—3 and 5—22. REVERSED 4