Ex Parte KERMAN et al

Patent Trial and Appeal BoardDec 20, 2017

14010094 (P.T.A.B. Dec. 20, 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. 14/010,094 08/26/2013 Eric KERMAN 1600-005U 7392 29973 7590 12/22/2017 CRGO LAW ATTN: STEVEN M. GREENBERG, ESQ. 7900 Glades Road SUITE 520 BOCA RATON, EL 33434 EXAMINER COLLINS, RAVEN ART UNIT PAPER NUMBER 3788 NOTIFICATION DATE DELIVERY MODE 12/22/2017 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): docketing@crgolaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ERIC KERMAN, THIERRY MAURICE, JEAN-CLAUDE JAMMET, ETIENNE HERMANT, and JEROME LIARD Appeal 2017-004187 Application 14/010,0941 Technology Center 3700 Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and ROBERT J. SILVERMAN, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1—14. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. 1 According to the Appellants, the real party in interest is Albea Services. Appeal Br. 2. Appeal 2017-004187 Application 14/010,094 STATEMENT OF THE CASE Claimed Subject Matter Claims 1 and 6 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A tube head configured for association with a skirt so as to form an internal volume of the tube, said tube head comprising: a body, formed from a plastics material, comprising a neck having an opening at a first end, through which opening a product is removed from the internal volume of the tube, and a shoulder which is joined to a second end of the neck opposite the first end; and an insert arranged so as to be in contact with said shoulder so as to form a barrier between the body and the product contained in the internal volume, said insert comprising a central portion and a peripheral region, said central portion forming a non-perforated disc sealing the neck, and said peripheral region being mounted so as to be in contact with a complementary planar surface of the body, the insert being substantially planar and within a cylindrical volume of diameter D and height h, a ratio of the value h/D being less than 0.1. Rejections Claims 1—4, 6—9, and 11—14 stand rejected under (pre-AIA) 35 U.S.C. § 103(a) as being unpatentable over Dobson (US 3,260,411, issued July 12, 1966), Menshen (DE 10 2005 005 166 Al, published Aug. 10, 2006), and Nisida (US 4,792,061, issued Dec. 20, 1988).2 2 The statement of this ground of rejection includes claims 1—4 and 6—9. Non-Final Act. 3 (mailed Nov. 20, 2015). The Office Action Summary of the Non-Final Office Action includes claims 11—14 as rejected claims. Additionally, the body of this rejection includes rejection of claims 11—14. Non-Final Act. 5—6. 2 Appeal 2017-004187 Application 14/010,094 Claims 5 and 10 are rejected under (pre-AIA) 35 U.S.C. § 103(a) as being unpatentable over Dobson, Menshen, Nisida, and Rubagotti (GB 2,022,547 A, published Dec. 19, 1979). ANALYSIS Independent claim 1 is directed to a tube head including an “insert being substantially planar and within a cylindrical volume of diameter D and height h, a ratio of the value h/D being less than 0.1.” Appeal Br. 10, Claims App. Independent claim 6 recites an identical limitation.3 The Examiner finds that Dobson discloses tube head insert 24. Non- Final Act. 3. The Examiner relies on Menshen’s teachings to modify Dobson’s tube head, but this modification does not appear to affect the height to diameter ratio of Dobson’s insert. See id. at 3^4. To meet the above-mentioned recitation of claim 1, the Examiner finds that “Nisida teaches a ratio of the value h/D being less than 0.1,” and concludes “[i]t would have been obvious to one having ordinary skill in the art... to modify Dobson to include the sized membrane in order to allow for easy attaching and penetration of the membrane.” Id. at 4 (citing Nisida, col. 3,11. 28-46). 3 The Specification explicitly defines the term “substantially planar.” Spec. 114 (“‘Substantially planar’ means that said insert has a shape which may be strictly planar or at the least, in the case of a tube head having a rotationally symmetrical shape, is not larger than a cylindrical volume having a diameter D and a height h, a ratio of the value h/D being less than 0.1, preferably 0.08, more preferably 0.065, the diameter D corresponding to the diameter of the insert.”). 3 Appeal 2017-004187 Application 14/010,094 The Appellants argue that the combined teachings of Dobson, Menshen, and Nisida do not teach “the insert being substantially planar and within a cylindrical volume of diameter D and height h, a ratio of the value h/D being less than 0.1,” as recited in claims 1 and 6. Appeal Br. 4—5, 8; Reply Br. 4. We agree. As correctly pointed out by the Appellants, Nisida describes a thickness of cap 5. Appeal Br. 8 (citing Nisida, col. 3,11. 28-46); see also Nisida, Fig. 1. The thickness or heights of Nisida’s cap 5 includes the heights of thin aluminum sheet 5a and upper and lower surface films 5b and 5c, respectively. Nisida, col. 3,11. 41—46. However, Nisida does not disclose cap 5’s diameter. Nor does Nisida disclose head 2’s or mouth member 4’s diameters, or that its figures are drawn to scale. Because Nisida does not disclose cap 5’s diameter, Nisida cannot be relied upon to teach a ratio of height to diameter (h/D). Reply Br. 4. In response, the Examiner finds that “average bottle neck openings have a diameter of about 18.5 mm,” and compares the “average bottle neck opening” to heights of parts of Nisida’s cap 5; for example, 100 microns (or 0.1 mm) to 18.5 mm to establish a ratio of height to diameter (h/D) to be less than 0.1. Ans. 6; see Nisida, col. 3,11. 28-46. The foregoing response is unavailing. Among other things, the Examiner’s finding that “average bottle neck openings have a diameter of about 18.5 mm” lacks support and appears arbitrary. Also, the Examiner does not find that Nisida’s tube has an “average bottle neck opening,” or otherwise indicate that Nisida’s tube is “average.” So, the Examiner does not present a reasonable explanation why Nisida’s insert has a diameter that is 18.5 mm, or a height to diameter (h/D) ratio less than 0.1 as required by claims 1 and 6. Hence, the Examiner’s rejection of claims 1 and 6 lacks a rational underpinning. 4 Appeal 2017-004187 Application 14/010,094 We also note that the Examiner rejects dependent claims 11—14 on a similar basis as claims 1 and 6. See Non-Final Act. 5—6. These claims require a ratio of height to diameter (h/D) to be either less than 0.08 or 0.065. See Appeal Br 13, Claims App. Here, the Examiner bases a further modification of Dobson’s insert on the finding that “Nisida teaches the ratio h/D of the insert 5a-c being less than .065.” Non-Final Act. 5—6 (citing Nisida, col. 3, 11. 28-46). For the reasons discussed above, this finding is also inadequately supported. Further, we note the Examiner attempts to add support for the reason to modify Dobson’s insert by citing to holdings in In re Rose, 220 F.2d 459 (CCPA 1955) and KSR Inti Co. v. Teleflex Inc., 550 U.S. 398 (2007). Non-Final Act. 6. The Examiner’s reliance on these holdings is insufficient to remedy the lack of rational underpinning discussed above. Thus, we do not sustain the Examiner’s rejection of claims 1—4, 6—9, and 11—14 as unpatentable over Dobson, Menshen, and Nisida. The remaining ground of rejection suffers from the same inadequately supported finding as discussed above, which is not cured by the further modification of Dobson’s tube head in view of Rubagotti’s teachings. As such, we do not sustain the Examiner’s rejection of claims 5 and 10 as unpatentable over Dobson, Menshen, Nisida, and Rubagotti. DECISION We REVERSE the Examiner’s decision rejecting claims 1—14. REVERSED 5