Ex Parte Olsen

Patent Trial and Appeal Board

Jul 29, 2016

12364280 (P.T.A.B. Jul. 29, 2016)

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.
12/364,280 02/02/2009 Robert C. OLSEN ITW-21900 3705
45482 7590 08/01/2016
PAULEY ERICKSON & KOTTIS
2800 W. HIGGINS ROAD
SUITE 365
HOFFMAN ESTATES, IL 60169
EXAMINER
GRANO, ERNESTO ARTURIO
ART UNIT PAPER NUMBER
3788
MAIL DATE DELIVERY MODE
08/01/2016 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 ROBERT C. OLSEN
____________________

Appeal 2014-006451
Application 12/364,280
Technology Center 3700
____________________

Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.

GREENHUT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1,
4–10, and 13–15. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

CLAIMED SUBJECT MATTER
The claims are directed to a flexible carrier for carrying a plurality of
containers such as cans or bottles. Claim 1, reproduced below, is illustrative
of the claimed subject matter:

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Application 12/364,280

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1. A carrier having a plurality of container receiving
apertures for unitizing a plurality of containers, the containers
having a shoulder diameter and a waist diameter, the carrier
comprising:
a series of interconnecting webs that define the plurality of
container receiving apertures, the webs stretchable around the
shoulder diameter of the container and recoverable around the
waist diameter of the container, whereby the waist diameter is
23–30% smaller than the shoulder diameter;
a weld extending longitudinally across the carrier between
two longitudinal rows of the container receiving apertures, a
center distance defined between the weld and an inner edge of
each container receiving aperture, wherein the inner edge is a
generally straight segment parallel to the weld; and
a pair of oblique bands extending from the weld that define
each container receiving aperture, wherein an oblique band width
is wider than the center distance resulting in inner portions of the
container receiving apertures stretching beyond an elastic state at
an inside periphery of each container receiving aperture while the
oblique bands accommodate the stretching and recovery without
suffering neckdown in the interconnecting webs.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Klygis
Broskow
Marco
Weaver
US 4,330,058
US 5,655,654
US 2005/0077194 A1
US 2006/0118432 A1
May 18, 1982
Aug. 12, 1997
Apr. 14, 2005
June 8, 2006

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Application 12/364,280

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REJECTIONS
Claims 1, 4–6, 10, and 13 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Broskow, Klygis, and Marco.1
Claims 7–9, 14, and 15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Broskow, Klygis, Marco, and Weaver.

OPINION
Regarding the requirement of independent claims 1 and 10 that “an
oblique band width is wider than the center distance,” the Examiner’s
rejection is premised on the following:
Klygis further teaches the provision of narrowing the
distance of a band (see 19 in figure 1) for the purpose of
preventing localized necking and rupturing of the band (col. 2, ll.
42–48). With this teaching in mind, it would have been obvious
to one of ordinary skill in the art to provide a center distance
between the weld and the aperture that has a width narrower than
the oblique band width.
Final Act. 4, 7.

1 Although the Examiner provides separate statements of the grounds of
rejection for claims 1, 5, and 6, claim 10, and claims 4 and 13, these claims
are all subject to the same ground of rejection. See Final Act. 2, 4, 8.
Further, Marco is not mentioned in any of the statements of rejection, but the
Examiner discusses it in rejecting independent claims 1 and 10. See id. at 4–
5, 7. Additionally, Appellant addresses Marco at page 5 of the Reply Brief.
Therefore, we treat Marco as being part of the rejection, and we understand
claims 1, 4–6, 10, and 13 are rejected as being unpatentable over Broskow,
Klygis, and Marco. Even if the prior art reference is cited to support the
rejection in a minor capacity, it should be positively included in the
statement of rejection. In re Hoch, 428 F.2d 1341, 1342 n.3, (CCPA 1970).
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Application 12/364,280

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We agree with Appellant that the Examiner’s reason for combining
the teachings of Broskow and Klygis is factually insufficient. See Appeal
Br. 7–8; Reply Br. 3–4. Klygis teaches a container carrier preform 10 with
prethinned regions 19 of an inner band section 16. Klygis, col. 1, ll. 16–35;
Fig. 1. Due to prethinning regions 19, inner band regions 119 of a container
carrier device 110 (see id. at Fig. 2), which is created by the preform 10, are
reliably thinned and oriented to avoid conceivable localized necking and
rupturing of the band segments where the force is applied. Id. at col. 2, ll.
36–51. Although Klygis teaches why a carrier preform has prethinned
regions, this disclosure does not sufficiently explain why a person of
ordinary skill would reduce a center distance between a weld and an inner
edge of an aperture to be less than an oblique band width, i.e., “an oblique
band width [being] wider than the center distance.”2 Furthermore, Klygis’
teaching of a narrowing a portion of a preform for the purpose of reliably
forming a carrier may explain why a person of ordinary skill would modify a
preform, but the Examiner has also not sufficiently explained why Klygis’
teachings regarding the shape of a preform would lead one of ordinary skill
to modify a formed carrier, such as that of Broskow.
The Examiner also finds that Marco teaches a “carrier having an
oblique band that has a thickness greater than the distance between a weld
and generally straight inner edge was well known in the art at the time of the
invention.” Final Act. 4–5, 7; Ans. 5, 8 (citing Marco, Fig. 2) (emphasis

2 We note that Klygis’s fourth claim, which is not cited or discussed by the
Examiner, does appear to acknowledge the existence of such an
arrangement, albeit without any further explanation in Klygis’s
Specification. See Klygis, col. 4, ll. 32–44.
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omitted). Appellant disputes this finding and argues “[t]he bands by the
cutout in the cited Fig. 2 of the Marco et al. Publication are the same size (if
not narrower) as the inner band portion.” Reply Br. 5. When a reference
does not disclose that the drawings are to scale and is silent as to
dimensions, the drawing features are of little value in establishing
measurements. See MPEP §2125; Hockerson-Halberstadt, Inc. v. Avia
Group Int’l, 222 F.3d 951, 956 (Fed. Cir. 2000) (“[I]t is well established that
patent drawings do not define the precise proportions of the elements and
may not be relied on to show particular sizes if the specification is
completely silent on the issue.”). Here, Marco is silent regarding the
dimensions of the carrier, and such dimensions are unclear from the
drawings. Consequently, the Examiner’s finding that Marco discloses a
carrier having an oblique band width that is wider than the center distance
from the weld to the inner edge of an aperture is based on speculation and
not supported by a preponderance of the evidence. Furthermore, the
Examiner has not provided any articulated reason as to why a person of
ordinary skill in the art would combine the teachings of Broskow, Klygis,
and Marco. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with
approval in KSR Intl. v. Teleflex, 550 U.S. 398, 418 (2007) (“[R]ejections on
obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.”).
In view of the foregoing, we do not sustain the Examiner’s rejection
of independent claims 1 and 10 and dependent claims 4–6, 10, and 13 as
unpatentable over Broskow, Klygis, and Marco. The Examiner does not rely
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on Weaver in any way that would cure the deficiencies discussed supra.
Accordingly, we similarly do not sustain the Examiner’s rejection of claims
7–9, 14, and 15 as unpatentable over Broskow, Klygis, Marco, and Weaver.

DECISION
The Examiner’s rejections are reversed.

REVERSED