Ex Parte Mottaz et al

Patent Trial and Appeal Board

Oct 29, 2018

14680800 (P.T.A.B. Oct. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/680,800 04/07/2015
8791 7590 10/31/2018
WOMBLE BOND DICKINSON (US) LLP
Attn: IP Docketing
P.O. Box 7037
Atlanta, GA 30357-0037
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Curt Daniel Mottaz
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.
9944P001 3061
EXAMINER
MELARAGNO, MICHAEL
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
10/31/2018 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):
FIP _Group@bstz.com
PTO.MAIL@BSTZPTO.COM
PTO.MAIL@BSTZ.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CURT DANIEL MOTTAZ and
ERNEST GORDON SHORTNESS
Appeal 2018-003 925
Application 14/680,800 1
Technology Center 3700
Before EDWARD A. BROWN, CHARLES N. GREENHUT, and
FREDERICK C. LANEY, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Curt Daniel Mottaz and Ernest Gordon Shortness (Appellants) seek
review under 35 U.S.C. § 134(a) of the Examiner's decision finally rejecting
claims 1-12 and 14--21. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Shomo, LLC is identified as the real party in interest. Appeal Br. 2.
Appeal2018-003925
Application 14/680,800
CLAIMED SUBJECT MATTER
Claims 1, 9, and 16 are independent claims. Claim 1 is illustrative,
and reads:
1. A beverage container for dispensing a liquid, comprising:
an upper region having an outer surface and an inner
surface;
a sidewall region coupled or integrated with the upper
region; and
a lower region integrated with the sidewall region, wherein
the lower region includes a solid flat bottom base support having
a substantially constant thickness for supporting the beverage
container on a surface and an inner sloped region integrated with
the solid flat bottom base support having an inner sloped surface
within the beverage container to provide an improved ability for
dispensing the liquid from the beverage container without tilting
the beverage container, wherein the inner sloped surface has a
single planar surface with a slope of 8 to 12 degrees with respect
to a horizontal reference line for a width of the inner sloped
region that extends completely to the sidewall region, wherein
the base support and inner sloped region include thermal
polyurethane insulation for thermal insulating of the liquid,
wherein the inner sloped region has a variable thickness that
gradually decreases in thickness near a faucet assembly.
Appeal Br. 24 (Claims App.).
REJECTIONS
The Final Office Action includes the following rejections under 35
U.S.C. § 103:
1. Claims 1-5 and 7 stand rejected as unpatentable over Lin
(US 2009/0236369 Al, published Sept. 24, 2009), Gregory (US
2006/0065679 Al, published Mar. 30, 2006), Wandel (US 4,721,214,
issued Jan. 26, 1988), and Schmider (US 8,567,627 B2, issued Oct.
29, 2013).
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Application 14/680,800
2. Claim 6 stands rejected as unpatentable over Lin,
Gregory, Wandel, Schmider, and Wiskochil (US 3,368,721, issued
Feb. 13, 1968).
3. Claim 8 stands rejected as unpatentable over Lin,
Gregory, Wandel, Schmider, and Hanks (US 5,673,823, issued Oct. 7,
1997).
4. Claims 9--12 and 14 stand rejected as unpatentable over
Lin, Yorn (US 6,827,237 B2, issued Dec. 7, 2004), and Schmider.
5. Claim 15 stands rejected as unpatentable over Lin, Yorn,
and Wiskochil. 2
6. Claims 16-18 stand rejected as unpatentable over Lin,
Wiskochil, Yorn, Doneghue (US 2006/0243745 Al, published Nov. 2,
2006), and Milcetich (US 7,275,662 Bl, issued Oct. 2, 2007).
7. Claims 19--21 stand rejected as unpatentable over Lin,
Wiskochil, Y om, Doneghue, Milcetich, and Schmider.
ANALYSIS
Rejection I-Claims 1-5 and 7 over Lin, Gregory, Wandel, and Schmider
Appellants argue for patentability of claims 1-5 and 7 as a group.
Appeal Br. 6-11. We select claim 1 as the representative claim, and claims
2-5 and 7 stand or fall with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
As to claim 1, the Examiner finds that Lin discloses a container
( container body 10) comprising a sidewall region and a lower region
including a base support and an inner sloped region (inclined baseplate 11)
2 Schmider is not listed in the rejection heading although claim 15 depends
from claim 9. Final Act. 8. We consider this omission as inadvertent, and,
accordingly, treat the rejection of claim 15 as also including Schmider.
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Application 14/680,800
having an inner sloped surface. Final Act. 2. The Examiner finds that Lin
does not disclose that the inner sloped surface has a single planar surface.
Id. The Examiner relies on Gregory for teaching a container comprising a
lower region including a solid flat bottom base support (bottom 18) having a
substantially constant thickness and an inner sloped region (interior surface
26) integrated with the solid flat bottom base support and having a variable
thickness that gradually decreases in thickness near a faucet assembly
(delivery pipe and valve 22). Id. at 2-3. The Examiner provides an
annotated version of Figure 2 of Gregory to indicate the locations of the
"sloped region" and "base support." Id. at 3. The Examiner concludes that
it would have been obvious to modify Lin in view of Gregory "to design the
lower region with a planar sloped inner surface to facilitate dispensing of the
container's contents and an integral base support with a solid flat bottom that
is wide enough to provide stability while standing upright on the ground."
Id.
The Examiner finds that Lin does not disclose that the insulation in
the base support and inner sloped region is polyurethane insulation. Id. The
Examiner relies on Wandel for teaching that polyurethane insulation
material is used in beverage containers, and concludes that it would have
been obvious to use this material in Lin. Id.
The Examiner finds that Lin does not disclose that the inner sloped
surface is sloped at an angle of 8 to 12 degrees with respect to a horizontal
reference line for a width of the inner sloped region, as claimed. Id. at 3--4.
The Examiner relies on Schmider for teaching a dispenser having a sloped
surface with a slope of about 10 to 14 degrees. Id. at 4 ( citing Schmider,
Figs. 4, 5). The Examiner concludes that it would have been obvious to
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Application 14/680,800
select an angle for the slope in Lin to permit foodstuffs to be fully, reliably
drained (id. (citing Schmider, col. 4, 11. 38-39)), as discovering optimum or
workable ranges involves only routine skill in the art (id. ( citing In re Aller,
220 F.2d 454,456 (CCPA 1955)).
Appellants contend that Lin does not disclose every limitation in
claim 1, including an inner sloped surface having a single planer surface.
Appeal Br. 6-7. However, we construe the Examiner statement that Lin "is
silent in regards to" "the lower region's base support's inner sloped surface
having a single planer surface" as acknowledgement that Lin does not
disclose this feature. See Final Act. 2.
Appellants contend that "bottom 18 of the container [ of Gregory] does
not include multiple sections." Appeal Br. 8 (emphasis added). Appellants
disagree that the use of a dashed line in Figure 2 of Appellants' application
"to illustrate the claimed base[] and inner sloped surface indicates that these
features are not distinct elements, but a single element merely having
portions thereof identified with different labeling." Reply Br. 3 ( emphasis
added); see Ans. 12. Appellants contest the finding that Gregory discloses
that "bottom 18 includes a solid flat bottom base support having a
substantially constant thickness because the bottom 18 of the container 12
has a variable thickness." Appeal Br. 8.
We understand Appellants' essential contention to be that the
limitation "an inner sloped region integrated with the solid flat bottom base
support" means that the inner sloped region and the solid flat bottom base
support are necessarily different "sections" or "elements" from each other.
Appellants do not direct us to any disclosure supporting this construction.
We note Appellants' Specification describes:
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Application 14/680,800
A base region 1040 includes or is integrated with an inner sloped
region 1060 having an inner sloped surface 1062 within the
container for improving an ability of the container to dispense
the liquid (e.g., all liquid) via the faucet assembly 1010 from the
container.
See Spec. ,r 44 (emphasis added), Fig. 10. This description does not indicate
clearly that "integrated with" means that base region 1040 and inner sloped
region 1060 are necessarily different "sections" or "elements" from each
other. Nor does this description indicate clearly that "integrated with" has a
different meaning than "includes." And even if Gregory's bottom 18 is a
single "section" or "element," and, thus, the portions of base 18 found by the
Examiner to correspond to the claimed "sloped region" and "base support"
(see Final Act. 3) are both in the same "section" or "element," we are not
persuaded that the term "integrated with" recited in claim 1 precludes the
Examiner's finding.
Appellants contend that Wandel does not disclose every limitation in
claim 1. Appeal Br. 8-9. However, the Examiner explains that Wandel is
used in the rejection only to teach the benefits of using polyurethane, a well-
known insulator, to insulate the container. Ans. 12. Appellants reply that
the Examiner's finding does not consider Wandel's entire disclosure and
Wandel teaches "a material polyurethane for insulating a coffee serving
pot." Reply Br. 3--4.
Appellants' contentions are unpersuasive. Lin discloses that container
body 10 includes insulating material 15 in the sidewall and appears to show
insulation provided in baseplate 11. See Lin ,r 23, Fig. 3. Although Lin does
not describe polyurethane insulation, Wandel evidences that polyurethane is
known to be used in containers "to maintain the temperature of beverages."
See Wandel, col. 1, 11. 47-55. In view ofWandel's teaching, it would have
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Application 14/680,800
been obvious to one of ordinary skill in the art to utilize polyurethane
insulation in Lin's container to maintain the temperature of a liquid, such as
tea or drink contained therein. See Lin ,r 23.
Appellants contend that Schmider does not disclose every limitation
in claim 1. Appeal Br. 8. However, the Examiner acknowledges this.
Appellants also contend that one of ordinary skill in the art would not have
reasonably applied Schmider's non-planar wedge shape for draining
hazardous foodstuff from the tank to Lin's "non-planar surface" formed of
baseplate 11 and inclined guiding portion to predictably form the claimed
"inner sloped surface ... [having] a single planar surface ... that extends
completely to the sidewall region." Id. at 10 ( emphases omitted).
These contentions are not persuasive. First, the Examiner explains
that Schmider is used to teach that designing an interior bottom with a
certain slope, such as 5-10 or 8-12 degrees, is known to permit foodstuffs to
be fully drained from a tank. Ans. 12. The Examiner does not propose
incorporating Schmider's base 300 in the combination. To the extent
Appellants are contending that the structures of Lin and Schmider must be
physically combinable with each other, "[i]t is well-established that a
determination of obviousness based on teachings from multiple references
does not require an actual, physical substitution of elements." In re Mouttet,
686 F.3d 1322, 1332 (Fed. Cir. 2012); In re Sneed, 710 F.2d 1544, 1550
(Fed. Cir. 1983) ("[I]t is not necessary that the inventions of the references
be physically combinable to render obvious the invention under review."
(Citation omitted)). We are not persuaded that the Examiner's combination,
without bodily incorporation of Schmider's base 300, would not meet the
claim limitations. Nor are we persuaded by attorney argument that the
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results of the Examiner's application of Schmider in the combination would
be unpredictable.
Second, the Examiner relies on Gregory for teaching a single planar
surface.
Third, we disagree that Schmider's teachings are limited to draining
hazardous foodstuff, as Appellants seem to imply. Appeal Br. 10. Schmider
teaches that the container can be used for liquids, without any explicitly-
described limitation. See Schmider, col. 1, 11. 16-19. We note hazardous
liquids only appear to be mentioned in describing a prior art reference. See
id. at col. 1, 11. 26-33.
For the foregoing reasons, we sustain the rejection of claim 1 as
unpatentable over Lin, Gregory, Wandel, and Schmider. Claims 2-5 and 7,
which are not separately argued, fall with claim 1.
Rejection 2-Claim 6 over Lin, Gregory, Wandel, Schmider, and Wiskochil
Rejection 3-Claim 8 over Lin, Gregory, Wandel, Schmider, and Hanks
Appellants contend that Wiskochil and Hanks fail to cure the
deficiencies of the rejection of claim 1. Appeal Br. 11. As we are apprised
of no deficiencies in the rejection of claim 1, we sustain the rejection of
claim 6 as unpatentable over Lin, Gregory, Wandel, Schmider, and
Wiskochil, and the rejection of claim 8 as unpatentable over Lin, Gregory,
Wandel, Schmider, and Hanks.
Rejection 4-Claims 9-12 and 14 over Lin, Yorn, and Schmider
As to claim 9, the Examiner finds that Lin's cooler comprises a solid
flat bottom base region including a first inner sloped region (inclined
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baseplate 11) and a second inner sloped region (inclined guiding portion 13 ),
but does not disclose that the first inner sloped region has a downward slope
in a first direction towards a lower inner surface of the base region or the
second inner sloped region has a downward slope in a second direction
towards the lower inner surface, where the lower inner surface has a
downward slope in a third direction. Final Act. 6.
The Examiner relies on Y om for teaching a liquid dispenser including
first and second inner sloped regions (lines 24) having downward slopes in
first and second directions, respectfully ( depicted by arrows 26), positioned
above a solid flat bottom base support, where the first and second directions
are both towards a lower inner surface (longitudinal line 28), which slopes in
a third direction ( depicted by arrow 30) towards a faucet assembly (spout
12). Id. at 6-7. The Examiner concludes that it would have been obvious to
modify Lin "to slope the inner sloped regions both laterally and
longitudinally so that the velocity of the liquid at the spout will be greater
than in other regions of the liquid which in tum pulls more liquid toward the
spout for improved drainage." Id. at 7 ( citing Yorn, col. 2, 1. 66-col. 3, 1. 5).
The Examiner finds that the combination of Lin and Y om does not
disclose that the lower inner surface has a downward slope in the third
direction along a length with a width of 0.2 inches to 3 inches, as claimed.
Id. However, the Examiner determines this dimension would have been an
obvious matter of design choice to provide improved drainage. Id. ( citing
Yorn, col. 2, 1. 66-col. 3, 1. 5).
Appellants disagree. Appeal Br. 14. Figure 1 of Y om appears to
show that the opposed, inclined surfaces associated with laterally-extending
arrows 26 converge at the location of longitudinally-extending arrow 30.
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The Examiner does not identify any disclosure in Y om that this location has
any particular width. Nor does the Examiner provide any evidence that
somehow modifying Yom's structure to result in a lower inner surface
having a downward slope in the third direction along a length (i.e., along
direction of arrow 30) with a width of 0.2 inches to 3 inches, as claimed,
would provide "improved drainage" of the contents of bag 10 within box 20.
In fact, Y om attributes drainage performance from bag 10 "to the lateral and
longitudinal sloping of the interior of the surface of the bottom of box 20."
See Yorn, col. 2, 1. 66-col. 3, 1. 4. We agree with Appellants that the
Examiner has not provided an adequate reason with a rational underpinning
to modify the combination of Lin and Y om to include a lower inner surface
having the claimed width.
Thus, we do not sustain the rejection of claim 9, and of claims 10-12,
and 14 depending therefrom, as unpatentable over Lin, Y om, and Schmider.
Rejection 5-Claim 15 over Lin, Yorn, Schmider, and Wiskochil
The Examiner's reliance on Wiskochil to reject claim 15 fails to cure
the omissions of the rejection of claim 9. Final Act. 8. Accordingly, we do
not sustain the rejection of claim 15 as unpatentable over Lin, Y om,
Schmider, and Wiskochil.
Rejection 6-Claims 16-18 over Lin, Wiskochil, Yorn,
Doneghue, and Milcetich
The Examiner finds, among other things, that Lin fails to disclose a
solid flat bottom base support. Final Act. 10. The Examiner relies on
Milcetich for disclosing this feature. Id. The Examiner concludes that it
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would have been obvious to modify Lin in view of Milcetich to design the
base support with a solid flat bottom to attach foot members 18 to inhibit
sliding of the base support relative to a shelf of a refrigerator. Id. ( citing
Milcetich, col. 3, 11. 1-16); see also id. Fig. 1.
Appellants contend that Milcetich discloses a bottle support device for
supporting a water bottle at an angle to facilitate dispensing water. Appeal
Br. 20. Although Milcetich's bottle support device 10 comprises body
member 11 including bottom surface 19 that appears to be flat (see, e.g.,
Milcetich, Fig. 2), the Examiner has not provided an adequate reason with a
rational underpinning why one of ordinary skill in the art would have
somehow modified Lin's baseplate 11 and/or inclined guiding portion 13, in
view of Milcetich, to include a solid flat bottom. Appellants point out that
Milcetich's bottle support device 10 lacks an interior-sloped liquid
dispensing portion because its top surface 15 is an exterior surface of body
member 11, and device 10 is separate from the supported water bottle.
Reply Br. 8; see also Milcetich, Fig. 2. We agree.
Also, the Examiner's stated reason for modifying Lin to have a "solid
flat bottom" is so that Milcetich's foot members 18 can then be attached to
the solid flat bottom. It appears this further modification would, effectively,
result in the bottom of the modified container not having a flat bottom
surface, and, as such, undo the proposed modification.
Accordingly, we do not sustain the rejection of claim 16, or of claims
1 7 and 18 depending therefrom, as unpatentable over Lin, Wiskochil, Y om,
Doneghue, and Milcetich.
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Rejection 7-Claims 19-21 over Lin, Wiskochil, Yorn,
Doneghue, Milcetich, and Schmider
The Examiner's reliance on Schmider to reject claims 19--21, which
depend from claim 16, fails to cure the deficiencies in the rejection of claim
16. Thus, we do not sustain the rejection of claims 19--21 as unpatentable
over Lin, Wiskochil, Y om, Doneghue, Milcetich, and Schmider.
DECISION
We affirm the rejections of claims 1-8 and reverse the rejections of
claims 9-12 and 14--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-IN-PART
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