Ex Parte PAGAN et alDownload PDFPatent Trials and Appeals BoardApr 10, 201913350336 - (D) (P.T.A.B. Apr. 10, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/350,336 01/13/2012 27752 7590 04/12/2019 THE PROCTER & GAMBLE COMPANY Global IP Services Central Building, C9 One Procter and Gamble Plaza CINCINNATI, OH 45202 FIRST NAMED INVENTOR Alfredo PAGAN 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. 11982M 7708 EXAMINER ANDERSON, DON M ART UNIT PAPER NUMBER 3733 NOTIFICATION DATE DELIVERY MODE 04/12/2019 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): centraldocket.im @pg.com pair_pg@firsttofile.com mayer.jk@pg.com PTOL-90A (Rev. 04/07) UNITED ST ATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ALFREDO PAGAN, CHOW-CHI HUANG, GENE MICHAEL ALTONEN, SU-YON McCONVILLE, WIDAL YS LUZ DESOTO-BURT, BRIAN DAVID ANDRES, and CRISTIAN ALEXIS VIOLA-PRIOLI1 Appeal 2018-006111 Application 13/350,336 Technology Center 3700 Before MICHAEL L. HOELTER, JAMES P. CAL VE, and LEE L. STEP INA, Administrative Patent Judges. CAL VE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Office Action fmally rejecting claims 1-10, 12-18, and20-27. See Br. 11. We have jurisdiction under35 U.S.C. § 6(b). We AFFIRM. 1 The Procter & Gamble Company is identified as the real party in interest. Br. 1. Appeal 2018-006111 Application 13/350,336 CLAIMED SUBJECT MATTER Claim 1, the sole independent claim, is reproduced below. 1. A closure for an outlet opening of a container compnsmg: a. a frrst component which assembles onto an outlet opening and provides a seal for an outlet opening said frrst component is threadingly engaged to a second component of said closure and wherein the frrst component comprises at least one snap ring for the frrst component to attach to a neck of the container; b. a second component comprising a dispensing orifice of said second component, said second component, threadingly engaged with said frrst component; c. the dispensing orifice positioned directly adjacent to the open portion of the container body; wherein the second component will engage with the frrst component when the second component is moved relative to the frrst component to enable operation of the orifice and wherein the frrst component comprises one or more elements being in a specific juxtaposition wherein a telescoping seal, a plug seal, a male thread, an anti-rotating female feature and an audible mechanism supporting the operation of the closure are in the plane or below the plane of the outlet of the container and wherein the closure and a container connected to the closure are held by a single hand of a user and closure is operated by a single digit of the single hand. Br. 13 (Claims App.). 2 Appeal 2018-006111 Application 13/350,336 REJECTIONS Claims 1-10, 12-18, 21, 24, 25, and 27 are rejected under 35 U.S.C. § 103(a) as unpatentable overPerra(US 2005/0150889 Al, pub. July 14, 2005) and McClean (US 6,622,895 B2, iss. Sept. 23, 2003). 2 Claims 20, 22, and 23 are rejected under 35 U.S.C. § 103(a) as unpatentable over Perra, McClean, and Fleming (US 2009/0293341 Al, pub. Dec. 3, 2009). Claim 26 is rejected under 35 U.S.C. § 103(a) as unpatentable over Perra, McClean, and Maroofian (US 2009/0145900 Al, pub. June 11, 2009). ANALYSIS Claims 1-10, 12-18, 21, 24, 25, and27 As Unpatentable Over Perra and McClean Appellant argues claims 1-10, 12-18, 21, 24, 25, and 27 as a group. Br. 3-9. We select claim 1, with claims 2-10, 12-18, 21, 24, 25, and27 standing or falling with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv). Regarding claim 1, the Examiner fmds that Perra discloses a closure for an outlet opening of a container, substantially as claimed, except for the frrst component comprising a snap ring. Final Act. 2-5. The Examiner fmds that Mc Clean discloses a closure that includes snap ring 3 8 to attach the closure to the neck of a container. Id. at 5. The Examiner determines that it would have been obvious to provide the frrst component of Perra with a snap ring as taught by McClean to provide an audible signal when the component is seated. Id. 2 The caption of this rejection lists claims 1-18, 21, 24, 25,and27 as subject to this rejection, but the rejection includes fmdings for claims 1-10, 12-18, 21, 24, 25, and 27. Final Act. 3-7. Claim 11 was cancelled. See Appeal Br. 14 (Claims App.). 3 Appeal 2018-006111 Application 13/350,336 Appellant argues that Perra does not disclose a snap ring on a neck of a container and a skilled artisan would not look to McClean for this feature to combine with Perra because these references are directed to two different mechanisms and closures. Br. 5---6. Appellant argues that a skilled artisan would not be motivated to selectively isolate a snap ring 3 8 disclosed in the flip top ofMcClean and add it to the unrelated disclosure of Perra. Id. at 6. In response, the Examiner fmds that Perra and Mc Clean are in the same field of endeavor as the claimed closure. Ans. 3--4. The Examiner fmds that the FIELD OF INVENTION in the Specification states that "[t]he present invention relates to a closure for an outlet opening of a container." Id. at 3. The Examiner fmds that Perra and Mc Clean both disclose container closures in this same field of endeavor, and a skilled artisan would consider the teachings of these references as relevantto the claimed closure. Id. at 4. Appellant does not dispute that the proposed modification of Perra' s closure with Mc Clean' s snap ring would meet the claim limitation. Id. at 3. Nor has Appellant provided persuasive argument addressing the Examiner's reason for combining McClean's snap ring 38 with Perra's closure, namely, to provide an audible signal when the component is seated. See Br. 3---6; Final Act. 5. McClean also teaches that snap ring 3 8 provides a snap fit that facilitates fitment of the closure on the container neck. McClean, 2:59-3:3. Perra discloses its Field of Invention as a device for sealing food containers, particularly drink containers with a sealing element that engages a wall of the container. Perra ,r 3. McClean discloses its invention as dispensers for fluent products "in which the dispensing closure is closely integrated in contour and structure with the package container." McClean, 1 :8-13. Thus, both references relate to closures for containers. 4 Appeal 2018-006111 Application 13/350,336 A preponderance of evidence supports the Examiner's finding that Perra and McClean are in the same field of endeavor as the claimed closure. Like the claimed closure, they are directed to container closures that allow dispensing of product from the container. Appellant does not dispute that the references are in the same field of endeavor. See Br. 5---6. Appellant also argues that tubular member 11 is not a telescoping seal as claimed. Br. 7. Appellant argues that tubular member 11 is provided with internal screw thread 12 and protrusion 13 to bound relative rotation of operating element 3 and sealing element 2, but it is not the same element nor does it make obvious the telescoping element of the invention. Id. In response, the Examiner fmds that tubular element 11 forms part of sealing element 2 and has internal screw threads 12 that co-act with external screw threads 16 of operating element 3 to create a seal that allows operating element 3 to telescope up and down in tube 11. Ans. 3 ( citing Perra ,r,r 40, 41, Figs. la-Id); see Final Act. 4 (citing Perra ,r,r 39--41, Figs. la-Id). We agree with the Examiner that Perra discloses tubular element 11 forms a telescoping seal between operating element 3 and sealing element 2. Claim 1 merely recites "a telescoping seal." The Specification discloses that telescoping seal 8 may enable dynamic sealing between the frrst and second components. Spec. 3. Tubular element 11 of Perra provides such a seal between sealing and operating elements 2, 3 to allow operating element 3 to telescope. Perra ,r,r 41, 42. Appellant does not apprise us of Examiner error. Appellants further argue that edge 9 is not a plug seal because sealing layer 10 is arranged between edge 9 and the wall so that there is no contact between edge 9 of sealing element 2 and the wall. Br. 7. Appellants argue that "edge 9 is not a plug seal as required by the present invention." Id. 5 Appeal 2018-006111 Application 13/350,336 In response, the Examiner fmds that Perra' s edge 9 forms a medium tight sealing of the foodstuff container by sealing with layer 10, which is adhered to the container wall, and therefore is part of the wall that forms a seal with edge 9. Ans. 4--5 (citing Perra ,r,r 12, 39); Final Act. 4. We agree with the Examiner that Perra discloses edge 9 as the part of sealing element 2 that forms a seal with the container wall thus to provide a "plug seal" as claimed. The Specification discloses that plug seal 9 provides a sealing mechanism between the container and frrst component 3. Spec. 3. Perra discloses that after device 1 is arranged on a wall of a container, edge 9 of sealing element 2 forms a medium-tight seal with the container. Perra ,r 39. Thus, Perra's edge 9 functions as a "plug seal" by providing a medium tight seal with the container wall via layer 10. Claim 1 only requires the frrst component to include "a plug seal" but does not recite how the plug seal seals with the container. Claim 1 does not preclude the use of another layer or element as part of the container wall to form a seal with the plug seal. Appellant also argues that Perra' s receiving space 4 is not an anti- rotating element because after if receives and cooperates with pin 18 to stop rotation, it allows sealing element 2 to be displaced linearly along pins 18 in a downward direction away from operating element 3. Br. 7-8. In response, the Examiner fmds that Perra' s receiving space 4 accepts and cooperates with pin 18 of operating element 3 to prevent sealing element 2 from rotating while allowing the sealing element to be displaced linearly and downwardly along pins 18. Ans. 5; Final Act. 3, 4. We agree with the Examiner that this limitation requires a feature that prevents rotation but does not also require the anti-rotating feature to prevent linear movement or translation. See Ans. 5. 6 Appeal 2018-006111 Application 13/350,336 Claim 1 recites "an anti-rotating female feature" without reciting any other structural or functional features. The Specification describes the anti- rotating feature as positioned between the first and second components as a mechanical interlocking joint. Spec. 3--4. Receiving spaces 4 of Perra's sealing element 2 correspond to the claimed anti-rotating feature because they interlock sealing element 2 and operating element 3 against rotation. Perra discloses that receiving spaces 4 on sealing element 2 interlock with pins 18 of operating element to "prevent simultaneous rotation of sealing element 2 during rotation of operating element 3." Perra ,r 39, Figs. le, Id. Claim 1 does not preclude linear movement of the frrst component relative to the second component. Indeed, the Specification discloses that vertical movement of the second component relative to the frrst component occurs. See Spec. 3. Claim 1 also recites a telescoping seal as discussed above. Appellant also argues that Perra lacks an audible mechanism because there is no disclosure of the ability of protrusion 13 to provide an audible mechanism as required by the present invention. Br. 8. In response, the Examiner fmds that protrusion 13 on sealing element 2 is an audible mechanism that will create a sound when it engages counter protrusion 17 to limit the maximum rotation when the closure is opened or closed. Ans. 5---6; Final Act. 4. The Examiner reasonably interprets claim 1 as not requiring a particular structure or a certain amount of sound. Ans. 6. The Specification discloses that"[ a ]n audible mechanism may communicate to the user when the closure is either closed or open." Spec. 3--4. The Specification also discloses that the closure may have cantilever feature 1 7 or a similar mechanical feature that will generate a sound as the user manipulates a closure from an open to a closed position. Id. at 7. 7 Appeal 2018-006111 Application 13/350,336 The Examiner's reasonably finds that Perra's protrusion 13 interacts with projecting counter-protrusion 17 of operating element 3 to limit relative rotation of operating element 3 and sealing element 2. See Perra ,r,r 40, 41. The Examiner also correctly fmds that these elements may be solid metal or plastic. See id. ,r 39. The Examiner also had a sound basis for fmding that Perra's protrusion 13 and counter-protrusion 17 are capable of acting as an audible mechanism by creating a sound when these elements co-act to limit the angle of rotation when the closure is opened based on the fact that Perra discloses similar mechanisms for these co-acting structures as Appellant discloses for its co-acting cantilever feature 17 and audible mechanism 23. Id. ,r 40; Ans. 6; Spec. Fig. 2. Appellant illustrates its audible mechanism 23 in Figure 2 as a protrusion like Perra's protrusion 13, and also illustrates the cantilever feature 1 7 as similar in structure to Perra' s counter-protrusion 1 7. See In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997) (when the Patent Office has reason to believe that a functional limitation that is asserted to be critical to establishing novelty may be an inherent characteristic of the prior art, it can require an applicant to prove that the subject matter disclosed in the prior art does not possess that claimed characteristic). Appellant's argument that Perra does not disclose the capability of protrusion 13 to provide an audible mechanism (Br. 8) does not persuade us of error in the Examiner's fmdings that Perra' s protrusion 13 and counter- protrusion 17 are capable of doing so, particularly if they are metal, because they have similar structure to the claimed audible mechanism. Ans. 6; Perra ,r 39. Nor has Appellant explained why Perra's protrusion 13 and counter- protrusion 17 are not inherently capable of acting as an audible mechanism when the closure is closed or opened. 8 Appeal 2018-006111 Application 13/350,336 Appellant does not identify any structure or function of the claimed audible mechanism that distinguishes over Perra. Br. 8. Claim 1 does not recite how the audible mechanism produces an audible response or what type or amount of an audible response is produced by the mechanism. Thus, we are not apprised of Examiner error regarding the recited audible mechanism. Appellant also argues that Perra's passage opening 48 is not directly adjacent to the open portion of the container body because it is off-center with respect to the container body's open portion. Id. at 8. In response, the Examiner finds that Perra's dispensing orifice 6 in Figs. la-Id is "directly adjacent" to the open portion of the container body because it is near, close or neighboring to the open portion of the container body. Ans. 6. We agree. Appellant's argumentthat Perra's orifice is not "directly adjacent" to an open portion of the container because it is off-center is not commensurate with the scope of claim 1. We agree with the Examiner's interpretation that "directly adjacent" requires the orifice to be near, close to, adjoining, or neighboring. Ans. 6. An ordinary meaning of adjacent does not require the orifice to be centered on the opening of the container as Appellant implicitly argues by contending that Perra's passage opening 48 is "off-center" and therefore not adjacent to an open portion of the container body. See Br. 8. Perra discloses passage opening 6 directly adjacent to an opening of a container. When the closure's sealing edge 9 seals to the wall of a container opening, passage opening 6 in Figures la-Id (see Final Act. 3--4; Perra ,r 39) is directly adjacent to the opening of a container body in the same way that orifice 5 of Appellant's closure is directly adjacent to a container opening when Appellant's closure is seated on a container. See Spec. 5, Fig. 7 A. 9 Appeal 2018-006111 Application 13/350,336 Appellant's argument that the rejection is a hindsight reconstruction (Br. 8-9) is not persuasive of error in the Examiner's reason for combining the teachings of Perra with McClean's snap ring 38 to facilitate attachment of the closure to the neck of the container and provide an audible signal when the component is seated. Final Act. 5. Such a predictable use of a prior art element to improve Perra's closure in a similar manner provides a rationale underpinning. See In re Cree, Inc., 818 F.3d694, 702 n.3 (Fed. Cir. 2016) (holding that appellant's hindsight argument was addressed by showing that a proper motivation to combine the references in fact existed). For all the foregoing reasons, we sustain the rejection of claim 1 and of dependent 2-18, 21, 24, 25, and 27, which fall therewith. Claims 20, 22, 23, and 26 As Unpatentable Over Perra, McClean, and Fleming/Maroofian Appellant again argues that Perra and Mc Clean do not disclose the limitations of claim 1, and the teachings of Fleming and Maroofian do not remedy these deficiencies so dependent claims 20, 22, 23, and 26 should be allowable because a prima face case of obviousness was not established as to claim 1. See Br. 9-11. Because we sustain the rejection of claim 1 over Perra and McClean, there are no deficiencies for Fleming or Maroofian to cure, and we also sustain the rejection of claims 20, 22, 23, and 26. DECISION We affrrm the rejections of claims 1-10, 12-18, and20-27. 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 10 Copy with citationCopy as parenthetical citation