Ex Parte PAGAN et al

Patent Trials and Appeals Board

Apr 10, 2019

13350336 - (D) (P.T.A.B. Apr. 10, 2019)

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.).
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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.
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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.
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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.
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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.
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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.
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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.
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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
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