Ex Parte Olsen

Patent Trial and Appeal BoardApr 26, 2016

13092347 (P.T.A.B. Apr. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/092,347 04/22/2011 45482 7590 04/26/2016 PAULEY ERICKSON & KOTTIS 2800 W. HIGGINS ROAD SUITE 365 HOFFMAN ESTATES, IL 60169 FIRST NAMED INVENTOR Robert C. Olsen 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. ITW-60220 6368 EXAMINER NEWAY,BLAINE GIRMA ART UNIT PAPER NUMBER 3788 MAILDATE DELIVERY MODE 04/26/2016 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NORIYUKI MIYOSHI Appeal2014-004019 Application 13/092,347 1 Technology Center 3700 Before MICHAEL C. ASTORINO, NINA L. MEDLOCK, and MATTHEWS. MEYERS, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. Â§ 134 from the Examiner's decision rejecting claims 1-5, 9, 10, and 12-16. We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). We REVERSE. 1 According to the Appellant, "[t]he real party in interest is Illinois Tool Works Inc., the assignee of the present application." Appeal Br. 2. Appeal2014-004019 Application 13/092,347 Claimed Subject Matter Claims 1 and 10 are the independent claims on appeal. Claim 10, reproduced below, is illustrative of the subject matter on appeal. 10. A generally continuous string of container carriers, each container carrier for utilizing a plurality of containers, the generally continuous string of container carriers comprising: a flexible web forming a plurality of container receiving apertures arranged in longitudinal rows and transverse ranks defining a single container carrier, wherein each container receiving aperture in an inner rank includes a different length than each container receiving aperture in an outer rank, each container receiving aperture including a generally arcuate base along an outer edge of the flexible web and a pair of concave sides that taper toward a center of the flexible web; a dividing aperture formed only at an outer longitudinal extremity of each container receiving aperture of the outer rank between each adjacent single container carrier, wherein the generally continuous string of container carriers is foldable along the dividing aperture; and a carton wherein the generally continuous string of container carriers are fan folded \'l1ithin the carton. Rejections Claims 10 and 12-16 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Olsen (US 6, 170,652 B 1, iss. Jan. 9, 2001 ), Smith (US 3,778,096, iss. Dec. 11, 1973), and Slaters (US 6,068, 125, iss. May 30, 2000). Claims 1-5 and 9 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Olsen, Smith, Green Barg (US 3,917,276, iss. Nov. 4, 197 5), and Slaters. 2 Appeal2014-004019 Application 13/092,347 ANALYSIS Independent claims 1 and 10 are directed to a container carrier( s) that include a flexible web forming a plurality of container receiving apertures arranged in longitudinal rows and transverse ranks. See Appeal Br., Claims App. Moreover, the transverse ranks include an inner rank and outer rank, where "a dividing aperture [is] formed only at an outer longitudinal extremity of each container receiving aperture of the outer rank." See Appeal Br., Claims App. (emphasis added). The Examiner finds that the claimed "dividing aperture" reads on Smith's teaching of a slot, slit, or opening 28. See Final Act. 3, Ans. 3. Notably, the Examiner does not rely on the teachings of Olsen, Smith, or Green Barg for the location of the claimed dividing aperture. The Appellant disagrees with the Examiner's finding and points out that Smith includes slits 28 and 30, which are located between each container-accommodating aperture 18. See Appeal Br. 6-7; see also id. at 5. We agree with the Appellant. Smith's Figure 1 depicts unit 10, which includes ten containers 12 supported by a plastic carrier strip 16 having ten container-accommodating apertures 18. See Smith, col. 2, 11. 2-16. Figures 1 and 2 depict a six-pack portion of unit 10 by use of bracket A, which includes six container- accommodating apertures 18. See id. at col. 2, 11. 49-53. Notably, openings 28 are formed at the outer rank(s) of six-pack portion (bracket A) and openings 30 are formed between the inner and outer ranks of six-pack portion (bracket A). See id. at col. 2, 1. 49---col. 3, 1. 28. Despite the fact that openings 28 are larger than openings 30, both openings are used to separate the transverse ranks of unit 10. See id. As such, openings 28 are not the 3 Appeal2014-004019 Application 13/092,347 only dividing apertures associated with either unit 10 or six-pack portion (bracket A). Further, we note that 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 the outer longitudinal extremity of each container receiving aperture of the outer rank of Olsen, a dividing aperture, for the predictable result of easily manufacturing and handling multiple carriers, and to facilitate the ease with which a carrier strip may be separated into six-pack units as taught by Smith in col. 3, lines 11-16. Final Act. 3 (emphasis added). However, the Examiner's reasoning that a carrier strip may be separated into six-pack units as taught by Smith does not explain why a person of ordinary skill in the art would have foregone the inclusion of openings 30 along with openings 28 to separate a six-pack unit into smaller packs, e.g., three two-pack units. As such, based on the Examiner's findings and reasoning we determine that the Appellant's argument is persuasive. Thus, we do not sustain the Examiner's rejections of: independent claim 1, and depending claims 2-5 and 9, as unpatentable over Olsen, Smith, Green Barg, and Slaters; and independent claim 10, and depending claims 12-16, as unpatentable over Olsen, Smith, and Slaters. DECISION We REVERSE the Examiner's decision rejecting claims 1-5, 9, 10, and 12-16. REVERSED 4