Ex Parte OlsenDownload PDFPatent Trial and Appeal BoardJul 29, 201612364280 (P.T.A.B. Jul. 29, 2016) Copy Citation 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: Appeal 2014-006451 Application 12/364,280 2 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 Appeal 2014-006451 Application 12/364,280 3 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). Appeal 2014-006451 Application 12/364,280 4 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. Appeal 2014-006451 Application 12/364,280 5 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 Appeal 2014-006451 Application 12/364,280 6 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 Copy with citationCopy as parenthetical citation