Ex Parte Shiffer

Patent Trial and Appeal BoardJul 27, 2015

12429508 (P.T.A.B. Jul. 27, 2015)

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. 12/429,508 04/24/2009 David A. Shiffer 1060-0028 1145 28078 7590 07/27/2015 MAGINOT, MOORE & BECK, LLP One Indiana Square, Suite 2200 INDIANAPOLIS, IN 46204 EXAMINER MATHEW, FENN C ART UNIT PAPER NUMBER 3781 MAIL DATE DELIVERY MODE 07/27/2015 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 DAVID A. SHIFFER ____________ Appeal 2013-008874 Application 12/429,508 Technology Center 3700 ____________ Before LINDA E. HORNER, ANNETTE R. REIMERS, and RICHARD H. MARSCHALL, Administrative Patent Judges. MARSCHALL, Administrative Patent Judge. DECISION ON APPEAL David A. Shiffer (Appellant) seeks our review under 35 U.S.C. § 134 of the Examiner’s Final decision rejecting claims 1, 3–11, and 13–20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE CLAIMED SUBJECT MATTER Appellant’s claimed subject matter relates to containers with removable closures. Spec. ¶ 1. Claim 1 is illustrative of the subject matter on appeal. Appeal 2013-008874 Application 12/429,508 2 1. A container and closure assembly, comprising: a container defining an opening and having a lip positioned around said opening, said lip defining a top surface, a bottom surface, and an outer surface therebetween; and a closure configured to be attached to said container, said closure including: a top portion defining a circular periphery, a first skirt portion extending downwardly from said circular periphery to form a cylindrical structure defining a first internal closure space, a second skirt portion extending downwardly from a first part of said cylindrical structure, said second skirt portion having a first side edge and a second side edge that are spaced apart from each other to form a gap, a tab extending downwardly from a second part of said cylindrical structure and positioned in said gap, a first vertex segment attached to said second skirt portion, a second vertex segment attached to said tab, and a plurality of spaced apart ribs each being (i) positioned at least partially in said first internal closure space, and (ii) attached to both said top portion and said cylindrical structure, wherein, when said closure is secured to said container, (i) said top surface of said lip is positioned in contact with said plurality of spaced apart ribs, (ii) said bottom surface of said lip is positioned in contact with both said first vertex segment and said second vertex segment, and (iii) said outer surface of said lip is positioned in contact with said second skirt portion, wherein said plurality of spaced apart ribs includes a pair of adjacent ribs that defines a first rib and a second rib, wherein said first rib has a first surface that defines a first plane P1, Appeal 2013-008874 Application 12/429,508 3 wherein said second rib has a second surface that defines a second plane P2, wherein said tab is located between said first plane P1 and said second plane P2, and wherein said tab is spaced apart from both said first plane P1 and said second plane P2. THE EVIDENCE The Examiner relied upon the following prior art in rejecting the claims on appeal: Stull US 2005/0145627 A1 July 7, 2005 Shiffer US 2007/0114236 A1 May 24, 2007 Auer US 2008/0078763 A1 Apr. 3, 2008 THE REJECTIONS Appellant seeks review of the following rejections: 1. Claims 1, 3, 5–11, 13, and 15–20 under 35 U.S.C. § 103(a) as unpatentable over Shiffer and Auer. 2. Claims 4 and 14 under 35 U.S.C. § 103(a) as unpatentable over Shiffer, Auer, and Stull. ANALYSIS Appellant presents arguments for patentability of independent claim 1 on appeal, and repeats the same arguments with respect to independent claim 11 and dependent claims 3–10 and 13–20. App. Br. 15. Accordingly, all of the claims on appeal stand or fall with claim 1. The Examiner found that Shiffer discloses several limitations of claim 1, including a top portion defining a circular periphery, a first skirt portion extending downwardly from the periphery to form a cylindrical structure Appeal 2013-008874 Application 12/429,508 4 defining a first internal closure space, and a second skirt portion extending downwardly from the first skirt portion. Final Act. 2. The Examiner also found that Shiffer does not disclose a second skirt portion having first and second side edges that are spaced apart to form a gap, and a tab extending downwardly from a second part of the cylindrical structure, among other things. Id. at 3. The Examiner found that Auer discloses these limitations not found in Shiffer, and that it would have been obvious to modify the closure of Shiffer with the second skirt and related features taught by Auer “in order to aid in the removal of the closure from the container.” Id. at 3–5. Appellant raises a number of arguments on appeal that focus on Auer’s failure to disclose certain claim limitations, including the “top portion defining a circular periphery” and the “first skirt portion extending downwardly from said circular periphery to form a cylindrical structure.” App. Br. 7–9. Appellant then argues that Auer cannot disclose the claimed tab extending downwardly from a cylindrical structure of Auer because Auer fails to disclose a “cylindrical structure” as required by the claims. Id. at 10. While the Examiner did make findings related to Auer’s disclosure of these limitations, the Examiner primarily relied on Shiffer for the disclosure of these limitations, and added the teachings related to the edges and tab of Auer, as well as the rib location, when combining the prior art. Final Act. 2– 5. The Examiner did not suggest replacing the entire closure of Shiffer with Auer’s closure. Id. Thus, even if we agreed with Appellant that Auer fails to disclose one or more of these limitations, that would not impact the Examiner’s findings related to Shiffer and Shiffer’s disclosure of these limitations. Because Appellant does not argue that Shiffer fails to disclose a “top portion defining a circular periphery” and the “first skirt portion extending downwardly from said circular periphery to form a cylindrical Appeal 2013-008874 Application 12/429,508 5 structure,” and our independent review of those findings does not reveal any error, we see no error in the Examiner’s finding that these limitations are disclosed in the combination of Shiffer and Auer. Appellant makes several additional arguments. First, Appellant argues that Auer teaches away from a tab extending downwardly from a first skirt portion because Auer’s hinged lock panel 315 is intentionally separated from the top portion and the first skirt portion of the closure. App. Br. 10– 11. According to Appellant, if top of the hinged lock panel is not separated in this manner, the ability to pivot the panel would be “limited.” Id. Even if this is true, limited movement of a lock panel (e.g., only prying the bottom of hinged lock panel 315) still provides some movement, and therefore some ability “to aid in removal of the closure from the container” as the Examiner found. Final Act. 5. We therefore disagree that Auer’s structure teaches away from the tab required by claim 1, or a combination with Shiffer, and see no error in the Examiner’s findings on this issue. Appellant also argues that Auer fails to disclose a tab located between planes defined by adjacent ribs as required by claim 1. App. Br. 11–14. This argument is premised on the argument that the “pawls” 420 in Auer are in fact ribs, and that the hinged panel 315 of Auer does not extend downwardly between the pawls because the pawls are on the rear of the hinged panel 315. Id. at 12–13. We disagree. As the Examiner correctly found, Auer discloses ribs 280, with the tab located between adjacent ribs. Final Act. 4; Auer, Figs. 2B and 5 (hinged lock 250, 350 between adjacent ribs 280). Auer’s description of the pawls as distinct from the ribs 280 of Auer, and performing different functions when the hinged lock is pivoted on the top of the container, support the Examiner’s finding that the pawls of Auer are not ribs. Ans. 5. In addition, the Examiner correctly found that Appeal 2013-008874 Application 12/429,508 6 Auer does not require the pawls, and because they are optional Auer discloses a structure without pawls. Id. at 5–6; Auer ¶ 39 (pawls 420 “may be formed” on the back of the pivot bars 400). Appellant’s argument does not apply at all to an embodiment without pawls, and Appellant did not respond to the Examiner’s finding that the pawls were not required. See Reply Br. 8. Finally, Appellant argues that the Examiner did not provide a rationale for modifying Shiffer to include the second skirt portion and tab of Auer. Reply Br. 9. While the Examiner did not have an opportunity to respond to this new argument made in Reply, the Examiner did find that one of skill in the art would have modified the second skirt portion of Shiffer by adding the edges, gap, and tab of Auer to aid in the removal of the closure from the container. Final Act. 4–5. Appellant contends that this finding did not explain why one having ordinary skill in the art would have modified Shiffer to include only the lower half of hinged lock panel 315 of Auer. Reply Br. 9. The edges, gap, and tab of Auer all correlate to the lower half of the hinged lock panel 315 or the area directly adjacent to it. Auer, Fig. 6B; Final Act. 3–4. Importantly, Appellant does not directly contest the Examiner’s finding, or argue that that one of ordinary skill in the art would not readily understand the improved ability to remove the closure using the edges, gap, and tab structure of Auer. Id. In addition, Auer refers to the advantages of slots or gaps in the bottom of the skirt, and how those structures aid in the removal of the closure. See Auer ¶¶ 51–54. We see no error in the Examiner’s finding that the edges, gap, and tab of Auer would aid in the removal of the closure of Shiffer and would provide the motivation to modify Shiffer with the structure of Auer. Appeal 2013-008874 Application 12/429,508 7 Based on the foregoing, we sustain the rejection of claim 1 and the rejection of all the remaining claims on appeal, which stand or fall with claim 1. DECISION We AFFIRM the decision of the Examiner to reject claims 1, 3–11, and 13–20. 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)(1)(iv). AFFIRMED mp