Ex Parte Schütz

Patent Trial and Appeal Board

Sep 25, 2017

12455139 (P.T.A.B. Sep. 25, 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.
12/455,139 05/28/2009 Udo Schütz 74526RCE 1347
23872 7590 09/26/2017
MCGLEW & TUTTLE, PC
P.O. BOX 9227
SCARBOROUGH STATION
SCARBOROUGH, NY 10510-9227
EXAMINER
ELOSHWAY, NIKI MARINA
ART UNIT PAPER NUMBER
3728
MAIL DATE DELIVERY MODE
09/26/2017 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 UDO SCHÜTZ
____________

Appeal 2015-005674
Application 12/455,139
Technology Center 3700
____________

Before JOHN C. KERINS, WILLIAM A. CAPP, and
BRENT M. DOUGAL, Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the final
rejection of claims 1–3, 7, and 8 as unpatentable under 35 U.S.C. § 103(a)
over Yang (US 7,448,509 B2, iss. Nov. 11, 2008) and Stoll (US 4,114,779,
iss. Sept. 19, 1978); and claims 1–8 over Nichols (US 5,217,138, iss. June 8,
1993) and Stoll. We have jurisdiction under 35 U.S.C. § 6(b).1
We AFFIRM.

1 This case came before the Board for regularly scheduled oral hearing on
September 20, 2017. Appellant’s oral arguments have been fully considered
herein.
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THE INVENTION
Appellant’s invention relates to a screw cap for a container. Spec. ¶ 1.
Claim 1, reproduced below with paragraph indentation added, is illustrative
of the subject matter on appeal.
1. A screw cap of plastic material comprising:
a cap disk and
an outer cap rim located adjacent at a right angle to a
circumference of the cap disk,
wherein the cap rim has
an internal thread for closing a filling and/or removal
socket of a container for transporting and storing
liquid, and
a central bung socket arranged retracted in the cap disk,
wherein the bung socket has an internal thread for
screwing in a bung plug,
the bung plug having
a cylindrical threaded sleeve with an external thread for
screwing in a threaded bore of the bung plug of the
cap, and
a sealing end provided with a conical multiple seal
formed integrally with the sealing end and comprised
of sealing rings which, when the bung plug is
screwed in, are pressed against a conical inner sealing
surface of a sealing projection of the bung socket
located adjacent an inner end of the threaded bore of
the bung socket of the screw cap, the sealing
projection projecting into an interior of the container.

OPINION
Unpatentability of Claims 1–3, 7, and 8
over Yang and Stoll
Claim 1
The Examiner finds that Yang discloses the claimed invention except
for the bung socket having a conical sealing surface and the bung plug
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having a conical end with sealing rings. Final Action 2. The Examiner
relies on Stoll for the conical sealing surface and sealing rings as claimed.
Id. The Examiner concludes that it would have been obvious to a person of
ordinary skill in the art at the time of the invention to provide Yang with a
bung socket having a sealing projection with a conical inner sealing surface
and bung plug with a conical sealing end with sealing ends as taught by Stoll
to achieve the claimed invention. Id. at 3. According to the Examiner, a
person of ordinary skill in the art would have done this to improve the seal
between the bung plug and bung socket. Id.
Appellant traverses the Examiner’s rejection by arguing that Yang
fails to disclose a bung plug with a conical multiple seal. Appeal Br. 7. In
response, the Examiner points out that Stoll is relied on as disclosing a
conical multiple seal. Ans. 2 (citing Stoll Fig. 10). We have reviewed
Figure 10 of Stoll and agree with the Examiner that denticulated surfaces 43
correspond to Appellant’s claimed conical multiple seal.
In reply, Appellant attempts to distinguish Stoll’s denticulated
surfaces 43 from the claimed multiple seal by pointing out that surfaces 43
are disposed on bushing 20 rather than on plug 28. Reply Br. 2. While
Appellant may be correct that Stoll’s surfaces 43 are disposed on
bushing 20, such fact is not sufficient to render claim 1 patentable as non-
obvious. The issue before us is whether a person of ordinary skill in the art,
armed with the teachings of Yang and Stoll, would have considered it
obvious to modify Yang with the teachings of Stoll to achieve the claimed
invention. Yang discloses a water bag with two, substantially concentric
circular openings and two corresponding circular covers. We agree with the
Examiner that small diameter cover 30 of Yang corresponds to Appellant’s
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bung plug. See Yang, Fig. 3, element 30. Small diameter cover 30 is
designed to cooperatively fit into hole 25 of large diameter cover 20 by
means of screw threads. See id. at Fig. 2.2 We find that Yang’s hole 25
corresponds to Appellant’s central bung socket. Stoll also discloses a cover
arrangement comprised of two substantially concentric circular openings and
two concentric caps, covers, or plugs that cooperatively fit into respective
openings. Stoll, col. 4, l. 52 – col. 5, l. 29, Fig. 3. Stoll differs from
Appellant’s invention primarily in that the larger diameter opening, rather
than the smaller, of the two concentric openings contains the sealing
structure relied on by the Examiner. See Stoll, col. 6, ll. 15–19, Figs. 3, 10,
elements 41, 43. This raises the question of whether it would have been
obvious to a person of ordinary skill in the art at the time of the invention to
take Stoll’s teaching of a sealing arrangement for the outer diameter opening
and adapt it to the inner diameter opening of Yang. The Examiner answers
that question in the affirmative and now so do we.
When a patent “simply arranges old elements with each performing
the same function it had been known to perform” and yields no more than
one would expect from such an arrangement, the combination is obvious.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) quoting Sakraida v.
Ag Pro, Inc., 425 U.S. 273, 282 (1976). Appellant’s invention does nothing
more than re-arrange a sealing arrangement from an outer diameter cover
opening to an inner diameter cover opening, yielding no more than one
would expect from such an arrangement. In our opinion, such a

2 Yang further teaches that “the cover of small diameter 30 can be coupled
onto the top of the cover of large diameter 20, such that the two covers can
be respectively coupled and loosened.” Id. at col. 3, ll. 2–4.
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modification of the prior art of Yang and Stoll is well within the ambit of
ordinary skill. KSR, 550 U.S. at 421 (“A person of ordinary skill is also a
person of ordinary creativity, not an automaton”).
We sustain the Examiner’s unpatentability rejection of claim 1 over
Yang and Stoll.
Claim 2
Claim 2 depends from claim 1 and adds the limitation:
four sealing rings integrally formed at the sealing end of the
threaded sleeve of the bung plug, wherein the sealing rings are
spaced apart by grooves and are arranged concentrically relative
to a longitudinal axis of the plug, wherein the diameters of the
sealing rings become smaller in a screwing-in direction of the
bung plug corresponding to the conical inner sealing surface of
the sealing projection of the bung plug of the screw cap.
Claims App. The Examiner finds that Stoll satisfies this limitation. Final
Action 3 (citing Stoll, Figs. 7, 10).
In traversing the rejection, Appellant relies solely on arguments that
we previously considered and found unpersuasive with respect to claim 1
and find equally unpersuasive here. Appeal Br. 10–11. We sustain the
rejection of claim 2 over Yang and Stoll.
Claim 3
Claim 3 depends from claim 2 and adds the limitation: “wherein the
sealing rings have rounded-off sealing rims.” Claims App. The Examiner
finds that Stoll discloses a rounded sealing structure. Final Action 3. In
traversing the rejection, Appellant relies primarily on arguments that we
previously considered and found unpersuasive with respect to claim 1 and
find equally unpersuasive here. Appeal Br. 11.
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Furthermore, Stoll discloses a plurality of alternative sealing member
designs. See Stoll, Figs. 6–10. We agree with the Examiner that the
Figure 6 embodiment has a rounded sealing ring. Id. at Fig. 6. It would
have been an obvious and predictable variation of Stoll to round the surfaces
of elements 43 of the Figure 10 embodiment and so satisfy the limitation of
claim 3. See KSR, 550 U.S. at 417 (predictable variations obvious). We
sustain the rejection of claim 3 over Yang and Stoll.
Claim 7
Claim 7 is an independent claim that is substantially similar in scope
to claim 1 except that the sealing rim is “rounded off.” Claims App. The
Examiner finds, and Appellant does not dispute, that Stoll discloses a
rounded sealing ring. Final Action 3 (citing Stoll, Fig. 6).
In traversing the rejection, Appellant relies on the same arguments
that we previously considered and found unpersuasive with respect to
claim 1, however adapted to the “rounded” sealing end limitation in lieu of
the “conical multiple” sealing end. Appeal Br. 12–13. We find those same
arguments equally unpersuasive here.
We sustain the rejection of claim 7 over Yang and Stoll.
Claim 8
Claim 8 is an independent claim that is substantially similar in scope
to claim 1. Claims App. In traversing the rejection, Appellant relies on the
same arguments that we previously considered and found unpersuasive with
respect to claim 1. Appeal Br. 13–14. We find those same arguments
equally unpersuasive here.
We sustain the rejection of claim 8 over Yang and Stoll.
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Unpatentability of Claims 1–8
over Nichols and Stoll
Claim 1
The Examiner finds that Nichols discloses the claimed invention
except for the bung socket having a conical sealing surface and the bung
plug having a conical end with sealing rings. Final Action 3. As with the
Yang grounds of rejection discussed above, the Examiner relies on Stoll for
the conical sealing surface and sealing rings as claimed. Id. The Examiner
concludes that it would have been obvious to a person of ordinary skill in the
art at the time of the invention to provide Nichols with a bung socket having
a sealing projection with a conical inner sealing surface and bung plug with
a conical sealing end with sealing ends as taught by Stoll to achieve the
claimed invention. Id. at 3–4. According to the Examiner, a person of
ordinary skill in the art would have done this to improve the seal between
the bung plug and bung socket. Id. at 4.
Appellant traverses the Examiner’s rejection by arguing that Nichols
fails to disclose a bung plug with the claimed end sealing arrangement.
Appeal Br. 15. As with the Yang grounds of rejection, the Examiner
responds that Stoll is relied on as disclosing a conical multiple seal. Ans. 5.
The issues and arguments presented here are essentially the same as
previously discussed with respect to the Yang grounds hereinabove. The
same result obtains here for essentially the same reasons.
Accordingly, we also sustain the rejection of claim 1 over the Nichols
grounds.
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Claim 2
We sustain the Examiner’s unpatentability rejection of claim 2 over
Nichols and Stoll based on essentially the same reasoning discussed above
with respect to the Yang grounds.
Claim 3
We sustain the Examiner’s unpatentability rejection of claim 3 over
Nichols and Stoll based on essentially the same reasoning discussed above
with respect to the Yang grounds.
Claim 4
Claim 4 depends from claim 1 and adds the limitation: “a bung plug
with an integrated aerating device.” Claims App. The Examiner finds that
element 66 of Nichols corresponds to Appellant’s claimed aerating device.
Final Action 3.
Appellant presents the following argument:
There is no disclosure in either Nichols or Stoll, III as to a bung
plug with an integrated aerating device and a sealing end that is
provided with a conical multiple seal that is formed integrally
with the sealing end as featured in the present invention.
Appeal Br. 19.
With respect to element 66, Nichols states that:
To provide for venting, the inner bung 62 may be further
provided with an interiorly threaded opening 64 capable of
acceptance of a threaded vent means 66 to further restrict the
opening 20. The vent means 66 is opened by rotating a vent
plug 68 some amount until the container 10 vents through the
engagement of the threaded opening 64 and the vent plug 68.
Nichols, col. 4, ll. 34–41. It is well settled that “integral” may be construed
to cover more than “one-piece” construction. See In re Morris, 127 F.3d
1048, 1055–56 (Fed. Cir. 1997). Appellant does not direct us to any
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language in the Specification that requires a narrow construction of
“integrated” that distinguishes Nichols’ threaded vent means 66.
Thus, in view of our previous determination sustaining the rejection of
claim 1 over Nichols, we determine that the Examiner’s additional findings
of fact regarding claim 4 are supported by a preponderance of the evidence.
Accordingly, we sustain the Examiner’s unpatentability rejection of claim 4
over Nichols and Stoll.
Claim 5
Claim 5 depends from claim 4 and adds the limitation: “a bung plug
having an integrated aerating and ventilating device.” Claims App. The
Examiner again relies on element 66 of Nichols as the claimed aerating
device. Final Action 3.
Appellant argues that Nichols element 66 is merely a vent, but does
not aerate as claimed. Appeal Br. 20. In response, the Examiner takes the
position that Nichols’ vent means 66 can be considered an integrated
aerating and ventilating device because it allows air to enter and exit the
container, by allowing air to enter and exit the device 66 aerates and
ventilates the container, to the degree set forth in claim 5. Ans. 6.
Appellant does not direct us to any language in the Specification that
requires a narrow construction of “aerate” that distinguishes Nichols’
threaded vent means 66. Paragraph 14 of the Specification merely states that
“an aerating device or a ventilating end aerating device are integrated into
the bung plug 7.” Spec. ¶ 14. Under the circumstances, Appellant’s
argument does not apprise us of error and we sustain the rejection of claim 5
over Nichols and Stoll.
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Claim 6
Claim 6 depends from claim 1 and adds the limitation: “wherein the
cap and the bung plug are injection-molded parts of plastic material.”
Claims App. The Examiner relies on Stoll as disclosing injection molded
plastic parts. Final Action 4. The Examiner concludes that it would have
been obvious to a person of ordinary skill in the art at the time the invention
was made to use injection molded plastic parts. Id. According to the
Examiner, a person of ordinary skill in the art would have done this in order
to use a well-known technique to form the closure elements. Id.
In traversing the rejection, Appellant relies on the same arguments
that we previously considered and found unpersuasive with respect to
claim 1, albeit also adding that Nichols and Stoll do not teach the claimed
structure using injection molded parts. Appeal Br. 20–21. Stoll teaches that:
Preferably in order to obtain the outstanding features of the
present invention the plastic bushing will be fabricated by an
injection molding process using an appropriate polymer, for
example polyethylene. The drum, which is prefabricated
preferably by a blow molding operation as a single piece unit,
will be formed from high density polyethylene, preferably of
ultra high molecular weight. It will be preferred that plug 28 be
an injection molded part made for example of polyethylene but
for that matter it could be a conventional metal bung plug.
Stoll, col. 6, ll. 28–38. The Examiner’s finding that Stoll discloses injection
molded plastic parts is amply supported by the record. Id.; Ans. 6.
Appellant’s other arguments are unpersuasive here for the same reasons we
have previously discussed in connection with the rejection of claim 1.
We sustain the Examiner’s unpatentability rejection of claim 6 over
Nichols and Stoll.
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Claim 7
In traversing the rejection, Appellant relies on the same arguments
that we previously considered and found unpersuasive with respect to
claim 1, however adapted to the “rounded” sealing end limitation in lieu of
the “conical multiple” sealing end. Appeal Br. 21–22. We find those same
arguments equally unpersuasive here.
We sustain the rejection of claim 7 over Nichols and Stoll.
Claim 8
Claim 8 is an independent claim that is substantially similar in scope
to claim 1. Claims App. In traversing the rejection, Appellant relies on the
same arguments that we previously considered and found unpersuasive with
respect to claim 1. Appeal Br. 22–23. We find those same arguments
equally unpersuasive here.
We sustain the rejection of claim 8 over Nichols and Stoll.
DECISION
The decision of the Examiner to reject claims 1–8 is 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)(1)(iv).
AFFIRMED