Ex Parte Perez et alDownload PDFPatent Trial and Appeal BoardOct 19, 201713198196 (P.T.A.B. Oct. 19, 2017) 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. 13/198,196 08/04/2011 Daniel Perez OC-629A1 7300 24959 7590 PPG Industries, Inc. IP Law Group One PPG Place 39th Floor Pittsburgh, PA 15272 EXAMINER KIRSCH, ANDREW THOMAS ART UNIT PAPER NUMBER 3781 MAIL DATE DELIVERY MODE 10/20/2017 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 DANIEL PEREZ, KIERON H. TSE, and JASON P. GROCHOWSKI Appeal 2016-001757 Application 13/198,196 Technology Center 3700 Before STEFAN STAICOVICI, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Daniel Perez et al. (“Appellants”) appeal under 35 U.S.C. § 134(a) from the Examiner’s Non-final decision rejecting claims 1—20.1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 Appellants submit the real party in interest is PPG Industries, Ohio, Inc. Appeal Br. 1. Appeal 2016-001757 Application 13/198,196 THE CLAIMED SUBJECT MATTER Appellants’ invention “relates to closures, and more particularly relates to container cap and seal assemblies for pastes, liquids and other materials.” Spec. 12. Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A container cap and seal assembly comprising: a container base having an internal volume; a cap movable from an open position to a closed position on the container base; and a seal member having a sealing surface engagable with a surface of the container base to thereby provide a seal that prevents air from entering the internal volume of the container base when the cap is removed from the container base, wherein the seal member is temporarily held on the cap when the cap is initially moved from the open position to the closed position, and wherein the seal member comprises a radially inwardly and upwardly extending rim in contact with a downwardly extending annular ring of the cap. REJECTIONS 1) Claims 1—7, 9, 10, and 14—20 are rejected under 35 U.S.C. § 103(a) as unpatentable over Fontanaud (US 4,196,819, issued April 8, 1980) and Moore (US 5,680,968, issued Oct. 28, 1997). 2) Claim 8 is rejected under 35 U.S.C. § 103(a) as unpatentable over Fontanaud, Moore, and Cros (US 3,944,103, issued Mar. 16, 1976). 3) Claims 11, 12, and 13 are rejected under 35 U.S.C. § 103(a) as unpatentable over Fontanaud, Moore, and King (US 5,411,157, issued May 2, 1995). 2 Appeal 2016-001757 Application 13/198,196 DISCUSSION Rejections 1, 2, 3 Claims 1—13 The Examiner finds that Fontanaud discloses all the limitations of claim 1 except “a seal that prevents air from entering the internal volume of the container base when the cap is removed from the container base.” Non- Final Act. 3—A. The Examiner finds that Moore discloses “a cap and seal assembly wherein a seal (40) is assembled to a seal member (24) and a cap (18) prior to application to a container base (10).” Id. at 4 (citing Moore, Figs. 2, 3). The Examiner concludes that it would have been obvious to “combine^ the seal of Moore with the cap and seal member assembly of Fontanaud for the purposes of assuring an airtight seal even in the absence of the cap to ensure freshness of the contents ... as well as providing a degree of tamper-evidencing to the assembly.” Id. (citing Moore 3:32-49). Appellants’ first contention is that neither Fontanaud nor Moore discloses a sealing member with a sealing surface engagable with a surface of the container base to provide an airtight seal and the Examiner fails to adequately explain “how one skilled in the art would modify Fontanaud in view of Moore to arrive at the sealing arrangement in claim 1.” Appeal Br. 7—8. The Examiner responds that “the closure of the combination would have a seal. . . applied to the bottom of the orifice plate/reducer, which is delivered to the container and adhered thereto.” Ans. 12. The Examiner provides an annotated version of Fontanaud’s Figure 1 illustrating the placement of Moore’s seal in Fontanaud’s device as contemplated in the rejection. Id. at 13. In reply, Appellants do not address the configuration of the seal presented in the Answer, but instead argue there are two other 3 Appeal 2016-001757 Application 13/198,196 possibilities for the placement of Moore’s seal, neither of which meets the claim limitations. Reply Br. 3^4. We first note that Moore discloses seal 40 is “bonded with the top of the bottle 12” thus, indicating seal 40 forms an airtight seal with the top of the bottle. Moore 4:23—24, Fig. 3. In the configuration illustrated in the Answer, the Examiner proposes placing Moore’s seal over the rim of the container opening from point 3’ at the left side of the container opening, under reducer 2, and to point 3 at the right side of the container opening thereby meeting the limitation in claim 1 of “a sealing surface engagable with a surface of the container base to thereby provide a seal that prevents air from entering the internal volume.” See Ans. 13. Appellants’ contention regarding the two possible configurations of the seal (Reply Br. 3^4) is not persuasive because it fails to apprise us of error regarding the configuration of the seal in the Examiner’s rejection. Appellants’ second contention is that “[wjhile the Examiner points to a specific portion of the cap (8) of Fontanaud as corresponding to the claimed ‘downwardly extending annular ring’, the Examiner fails to describe where the purported ‘seal member comprising a radially inwardly and upwardly extending rim’ is found.” Appeal Br. 8.2 The Examiner, however, provided an explanation as to how Fontanaud’s reducer meets this claim limitation including an annotated version of Fontanaud’s Figure 1. Non-Final Act. 3^4. The Examiner’s annotated drawing illustrates that Fontanaud’s reducer 2, which the Examiner finds corresponds to the claimed seal member, includes u-shaped portion 10. According to the Examiner, the reducer 2 extends upward from the bottom and radially inward from element 2 We note that Appellants do not dispute the Examiner’s finding that item 8 in Fontanaud is a part of Fontanaud’s cap. 4 Appeal 2016-001757 Application 13/198,196 10 and contacts Fontanaud’s element 8. See Non-Final Act. 4; Fontanaud, Fig. 3. Appellants do not provide argument or evidence concerning this finding by the Examiner and hence do not apprise us of error. Appellants’ third contention is that the combination of Fontanaud and Moore destroys “the operability of Fontanaud” because Fontanaud’s reducer 2 “must be open in order to allow the contents of the container to be removed, while the seal (40) of Moore must be closed in order to provide its tamper-evident function.” Appeal Br. 6. The Examiner responds that Moore teaches that the tamper-evident seal 40 would be removed in known fashion which “allows the closure of Fontanaud to remain operable, while gaining the benefits and advantages of the tamperproof/freshness seal of Moore.” Ans. 12. Moore discloses that the “consumer then pierces the seal 40” thereby providing “means of dispensing the food product in a simple and convenient manner.” Moore 4:29, 41—43. We note that, like Moore, Appellants’ Specification indicates that “the seal member 40 is subsequently removed from the base 20 by the user” after the cap is removed. Spec. 130. Appellants do not provide persuasive argument or evidence why removal of or piercing the seal of Moore, as contemplated in Moore, would prevent the contents of Fontanaud’s container from being removed. We, thus, are not persuaded by this contention. As Appellants do not apprise us of error, we sustain the rejection of claim 1. Appellants do not provide separate arguments for the patentability of claims 2—13 which depend directly or indirectly from claim 1. Appeal Br. 7—10. We, thus, sustain the rejections of claims 2—13 for the same reasons as claim 1. 5 Appeal 2016-001757 Application 13/198,196 Claim 14 Independent claim 14 is directed to “A cap and seal assembly for a container comprising ... a separate seal member pressed onto the cap.” Claims App. 3. Appellants contend that Fontanaud fails to disclose a separate seal member pressed onto a cap. Appeal Br. 9. The Examiner, however, relies on Moore for this limitation. Non-Final Act. 3 (citing Moore Fig. 3); Ans. 14. Accordingly, Appellants’ contention is not persuasive because it is not responsive to the rejection. Claims 15 and 16 Claim 15 is a method claim with limitations substantially similar to claim 1. Claims App. 3. Appellants contend that claim 15 is patentable for the same reasons as claim 1. Appeal Br. 9—10. We sustain the rejection of claim 15 for the same reasons stated for claim 1. Appellants do not argue separately for the patentability of claim 16 which depends from claim 15. Appeal Br. 9—10. We sustain the rejection of claim 16 for the same reasons as claim 15. Claims 17 and 18 Claim 17 recites that “the seal member can be re-installed on the container base after it has been removed from the container base.” Claims App. 3. Claim 18 recites that “the seal member can be re-engaged on the cap after the cap has been removed from the container base.” Id. The Examiner relies on Moore for disclosing these limitations. Non-Final Act. 7 (“Note that there is no structure that would prevent the seal from being applied to a container base after being removed.”). Appellants contend that Moore “discloses that the seal must be destroyed in order to gain access to the interior of the container” and, thereafter, “cannot be reinstalled on the 6 Appeal 2016-001757 Application 13/198,196 container base” or “re-engaged on the cap.” Appeal Br. 10. We do not sustain the rejection of claims 17 and 18 for the following reasons. Moore discloses that seal 40 “form[s] a bond with the container 12 that is not easily broken without damage to the seal 40” and is pierced by the user to access the contents of the container. Moore 4:19—20, 29. The Examiner does not adequately explain how Moore’s seal 40 could either be reinstalled on the base or reengaged on the cap after being pierced and/or otherwise damaged when removed. We, therefore, do not sustain the rejection of claims 17 and 18. DECISION The Examiner’s decision rejecting claims 1—16, 19, and 20 is affirmed. The Examiner’s decision rejecting claims 17 and 18 is reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED-IN-PART 7 Copy with citationCopy as parenthetical citation