Ex Parte Schramm

Patent Trial and Appeal Board

Jan 30, 2017

13100329 (P.T.A.B. Jan. 30, 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.
13/100,329 05/04/2011 Michael R. Schramm MRS-028U 2678
52966 7590
S chramm-Personal-ACT
Michael R. Schramm
350 West
2000 South
Perry, UT 84302
EXAMINER
REYNOLDS, STEVEN ALAN
ART UNIT PAPER NUMBER
3788
NOTIFICATION DATE DELIVERY MODE
02/01/2017 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):
mikeschramm @ besstek. net
mschramm @juneaubiosciences.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL R. SCHRAMM
Appeal 2015-002027
Application 13/100,329
Technology Center 3700
Before BRETT C. MARTIN, THOMAS F. SMEGAL, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant Michael R. Schramm appeals under 35 U.S.C. § 134 from
the Examiner’s decision rejecting claims 1—23. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2015-002027
Application 13/100,329
THE CLAIMED SUBJECT MATTER
The claims are directed “to containers for use in collecting treats and
more especially for use when collecting treats during ‘trick-or-treating’ or
‘guising.’” Spec. 12. Claims 1,8, 15, and 22 are the independent claims.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A collection apparatus for use in collecting treats while
preventing spillage of said treats and while controlling access to
said treats and while rendering treat tampering evident, said
apparatus defining
a container having an inner cavity and a funnel extending
into said inner cavity,
said funnel being adapted to allow the passage of articles
from outside of said container to within said container inner
cavity by said articles passing through said funnel,
wherein said funnel is free of a structure for use in
impeding passage of articles completely through said funnel and
into said inner cavity being connected to an underside thereof,
and
wherein said apparatus further defines at least one of an
apparatus adapted such that if said apparatus is opened or
disassembled, such opening or such disassembly is rendered
evident, and an apparatus adapted such that disassembly or
opening of said apparatus is child-resistant.
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
REFERENCES
Beck
Fraga
O'Neill
Rice
US 5,129,531
US 6,460,761 B1
US 7,191,911 B1
US 2010/0200533 A1
July 14, 1992
Oct. 8, 2002
Mar. 20, 2007
Aug. 12, 2010
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Appeal 2015-002027
Application 13/100,329
REJECTIONS
The Examiner made the following rejections:1
1. Claims 1—3, 5—10, 12—18, 20, and 21 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Fraga and Beck.
2. Claims 4, 11, and 19 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Fraga, Beck, and Rice.
3. Claims 22 and 23 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Fraga, Beck, and O’Neill.
Appellant seeks our review of these rejections.
ANALYSIS
The Rejection of Claims 1—3, 5—10, 12—18, 20, and 21
as Unpatentable Over Fraga and Beck
Appellants argue claims 1—3, 5—10, 12—18, 20, and 21 as a group.
Appeal Br. 6—9. We select claim 1 as the representative claim, and claims 2,
3, 5—10, 12—18, 20, and 21 stand or fall with claim 1. 37 C.F.R. §
41.37(c)(l)(iv).
The Examiner finds that Fraga discloses all of the limitations in claim
1 except for a container being tamper evident. Final Act. 4. The Examiner
also finds that Beck discloses a tamper evident assembly and determines that
it would have been obvious to provide “the assembly of Fraga with a tamper
indicating severable tab as taught by Beck in order to indicate whether the
assembly has been opened.” Id.
1 The rejections of claims 8 and 22 under 35 U.S.C. § 112, second
paragraph, are withdrawn. Ans. 2—3.
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Appeal 2015-002027
Application 13/100,329
Appellant argues that the Examiner incorrectly finds that Fraga
discloses a “funnel [that] is free of a structure for use in impeding passage of
articles completely through said funnel and into said inner cavity being
connected to an underside thereof,” as recited in claim 1. Appeal Br. 6—9.
Specifically, the Examiner finds that Fraga discloses this limitation because
Figure 4 of Fraga discloses a funnel that “is free of a structure that impedes
passage of small articles since the flap 112 is held at its downward
orientation by the weight 160, allowing passage of small articles into the
cavity through the opening 126 without coming into contact with the flap.”
Final Act. 4; see also Ans. 4—5. According to the Examiner, “Fig. 4 of Fraga
is considered free of a structure for use in impeding passage of articles
completely through said funnel and into said inner cavity since an article (for
example: a marble) can pass into the cavity through the opening 126 without
coming into contact with the flap 112 in its downward resting position.”
Final Act. 12—13; see also Ans. 4—5.
In response to the Examiner’s findings, Appellant agrees that Figure 4
of Fraga discloses funnel 109 that permits passage of certain small articles
(e.g., marble 54, crayon 52), but argues that certain larger articles (such as
the arbitrarily-shaped article drawn by Appellant in Appellant’s annotated
Figure 4 (see Appendix A to Appellant’s Brief)) would be impeded by cap
110 in Figure 4. See Appeal Br. 6; see also Appeal Br. 7—9, Reply Br. 3, 5.
Unfortunately, neither the Specification nor Appellant define the broad term
“article.” However, a definition of “article” is “an individual thing or
element of a class; a particular object or item: an article of clothing; articles
of food.” The Free Dictionary, http://www.thefreedictionary.com/articles
(last visited January 24, 2017). Thus, an ordinary meaning of “article,” in
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Appeal 2015-002027
Application 13/100,329
light of the Specification, is an “object or item.” Examples of articles
include Appellant’s treats 90, which pass through funnel 40 in the
Specification (Spec. 121, Fig. 5a), and crayons 52 and marbles 54 in Fraga
(Fraga 5:4—7, Fig. 1). We note that Appellant’s treats 90 and Fraga’s
marbles 54 would pass through Fraga’s funnel 40 because Fraga’s cap 110 is
designed to permit these articles to pass into the container, and impedes
these articles from exiting the funnel when the container is turned on its side
or upside down. Fraga 6:59-64.
In light of the ordinary definition of article and Appellant’s admission
that Fraga discloses a funnel that does not impede passage of articles (e.g.,
marbles) through the funnel (e.g., Appeal Br. 6), Appellant does not show
that the Examiner erred in finding that Fraga discloses that “funnel [90] is
free of a structure for use in impeding passage of articles completely through
said funnel and into said inner cavity being connected to an underside
thereof,” as recited in claim 1. Appellant’s argument that, because a
hypothetical arbitrarily-shaped or -sized article may not be able to pass
through Fraga’s funnel or Figure 4 is different from other Fraga
embodiments (see Appeal Br. 6—9), Fraga does not disclose this limitation is
not commensurate with the broad scope of claim 1.
Paraphrasing claim 1, Appellant also argues that Fraga does not
disclose a container having a funnel that is free of an article-impeding
structure connected to an underside of the funnel. Appeal Br. 9, 10 (with
respect to claims 4, 11, and 19), 11 (with respect to claims 22 and 23); Reply
Br. 6. However, the full limitation of claim 1 actually states the “funnel is
free of a structure for use in impeding passage of articles through said funnel
and into said cavity being connected to an underside thereof.” Because
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Appeal 2015-002027
Application 13/100,329
Fraga’s funnel is free of a structure that impedes passage of articles into the
cavity, Appellant’s argument is not commensurate with the scope of claim 1.
For the reasons above, the rejection of claim 1 must be sustained.
Claims 2—3, 5—10, 12—18, 20, and 21 fall with claim 1.
The Rejections of Claims 4, 11, 19, 22, and 23
Appellant relies on the arguments presented in support of patentability
of independent claims 1, 8, and 15 to contest the Examiner’s rejections of
claims 4, 11, 19, 22, and 23, which depend therefrom. Appeal Br. 10—11.
For the reasons set forth above, we sustain the rejections of claims 1, 8, and
15, and, thus, we likewise sustain the rejections of claims 4, 11, 19, 22, and
23.
DECISION
For the above reasons, the Examiner’s rejection of claims 1—23 are
AFFIRMED.
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) (2015).
AFFIRMED
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