Ex Parte Perez et al

Patent Trial and Appeal Board

Oct 19, 2017

13198196 (P.T.A.B. Oct. 19, 2017)

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).
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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
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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.
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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.
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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
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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
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