Ex Parte Pavlovic et al

Patent Trial and Appeal BoardMay 23, 2013

11200976 (P.T.A.B. May. 23, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ERIN KIM PAVLOVIC, KEITH A. HAAPALA, and JOSEPH F. WELK ____________________ Appeal 2011-004397 Application 11/200,976 Technology Center 3700 ____________________ Before CHARLES N. GREENHUT, PATRICK R. SCANLON, and BART A. GERSTENBLITH, Administrative Patent Judges. SCANLON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-004397 Application 11/200,976 2 STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s decision rejecting claims 1-14 and 19-34. Claims 15-18 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION Claims 1 and 20 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A closure for a container having a mouth, said closure comprising (a) a cap, said cap made of a polymeric material, (b) an interior seal having two major surfaces, said interior seal consisting essentially of a layer of brittle material, and (c) an exterior seal having two major surfaces, said exterior seal consisting essentially of an elastomeric material having a hardness ranging from about 30 Shore A to about 90 Shore A, said layer of brittle material having two major surfaces, a major surface of said layer of brittle material being in contact with a major surface of said exterior seal. Claim 20 is directed to a closure having the same elements as claim 1 with the exception that the “interior seal consist[s] essentially of a layer of brittle material, a layer of paper, [and] a first layer of adhesive interposed between the layer of brittle material and the layer of paper.” REFERENCES The Examiner relies upon the following prior art references: McCarthy US 5,012,946 May 7, 1991 Kacian US 2005/0079633 A1 Apr. 14, 2005 Appeal 2011-004397 Application 11/200,976 3 REJECTIONS The following rejections are before us on appeal: Claims 1-8 and 10-14 stand rejected under 35 U.S.C. §102(e) as being anticipated by Kacian. Claims 9 and 20-33 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Kacian and McCarthy. Claims 19 and 34 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Kacian. ANALYSIS Independent claims 1 and 20 both call for an “exterior seal consisting essentially of an elastomeric material having a hardness ranging from about 30 Shore A to about 90 Shore A.” The Examiner relies on Kacian as disclosing the claimed hardness in rejecting claim 1 as anticipated by Kacian and claim 20 as unpatentable over Kacian and McCarthy. Ans. 3-4. Specifically, the Examiner notes that the filter 33 of Kacian (interpreted by the Examiner as comprising part of the claimed exterior seal) can be formed of a variety of materials, including foams and sponges. Id. (quoting Kacian, para. [0054]). The Examiner then cites a table1 as showing that inner tubes have a hardness of approximately 55 Shore A and “asserts that synthetic foams and sponges have a consistency similar to inner tub[e]s, and thus it is likely that synthetic foams/sponges would fall between 30 and 90 on the shore A table.” Ans. 4. Appellants disagree with this position, arguing that Kacian “does not specify the hardness of the elastomeric material.” App. Br. 8; see also Reply 1 From the web page “Hardness Measurement and Specifications,” http://www.machinist-materials.com/hardness.htm (February 2010). Appeal 2011-004397 Application 11/200,976 4 Br. 6. We agree with Appellants. The Examiner has not provided a factual basis supporting the finding that the synthetic foams and sponges of Kacian would necessarily have a hardness similar to the inner tubes listed in the cited table. McCarthy, which is relied on for disclosing a seal having a layer of paper and an adhesive (Ans. 4), does not remedy the deficiency of Kacian with respect to the claimed hardness. As such, the Examiner has not shown a sound basis for the belief that the prior art discloses an “exterior seal consisting essentially of an elastomeric material having a hardness ranging from about 30 Shore A to about 90 Shore A.” We accordingly do not sustain the rejections of independent claims 1 and 20, and of claims 2-14, 19, and 21-34 depending therefrom. DECISION We reverse the decision of the Examiner rejecting claims 1-14 and 19- 34. REVERSED Klh