Ex Parte Skolik et alDownload PDFPatent Trial and Appeal BoardNov 27, 201210472340 (P.T.A.B. Nov. 27, 2012) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte BERNARD SKOLIK, JENS ECKERMANN, and HILGER SCHEELCKE ____________________ Appeal 2010-006363 Application 10/472,340 Technology Center 3700 ____________________ Before: JENNIFER D. BAHR, HYUN J. JUNG, and JEREMY M. PLENZLER, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-006363 Application 10/472,340 2 STATEMENT OF THE CASE Bernard Skolik et al. (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1, 3, 5-12, 15, and 17. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. The Claimed Subject Matter Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A container carrier made of a foldable flat material, comprising: a box-shaped carrying container which is open at top and has a bottom wall, longitudinal walls, and end walls, a middle wall parallel to the two longitudinal walls in the carrying container that has a carrying handle at the top, transverse webs parallel to the end walls between the middle wall and the longitudinal walls for forming compartments in the carrying container to receive containers therein; outwardly inclined bottom slopes which are joined to the longitudinal-sided edges of the bottom wall at bottom and to the lower edges of the longitudinal walls at the top; and wherein bottles having lower bottle edges, a bottle axis, and bottle dimensions, are inserted into the carrier and wherein the container carrier has dimensions made to match with the dimensions of the bottles so that the bottles are pinched in the compartments in the area of the bottom slopes; and further wherein the inclination of the bottom wall slopes towards the middle wall is approximately equal to the inclination of the lower bottle edges towards the bottle axis of the bottles to be inserted into the container carrier or exceeds it somewhat and further wherein the cross dimensions of the compartments in the carrying container, above the area of the bottom slopes, slightly exceed the bottle dimensions, so that the bottle can be comfortably inserted into the compartment Appeal 2010-006363 Application 10/472,340 3 and further wherein the bottom slopes being without openings, at least in the area on which the lower bottle edges rest. Evidence The Examiner relied on the following evidence in rejecting the claims on appeal: Holmes Stout Bakx Broskow Holley US 3,797,729 US 4,258,844 US 5,423,420 US 5,505,304 US 5,611,425 Mar. 19, 1974 Mar. 31, 1981 Jun. 13, 1995 Apr. 9, 1996 Mar. 18, 1997 Rejections Appellants request our review of the following rejections: The Examiner rejected claims 1, 3, 5-8, 10-12, and 15 under 35 U.S.C. § 103(a) as unpatentable over Stout, Bakx, and Holmes. The Examiner rejected claim 17 under 35 U.S.C. § 103(a) as unpatentable over Stout, Bakx, Holmes, and Broskow. The Examiner rejected claim 9 under 35 U.S.C. § 103(a) as unpatentable over Stout, Bakx, Holmes, and Holley. OPINION Independent claim 1 and its dependent claims require that the inclination of the outwardly inclined bottom slopes of the container carrier toward the middle wall be approximately equal to or exceed somewhat the inclination of the lower bottle edges toward the bottle wall axis, and that the bottom slopes be without openings, at least in the area on which the lower bottle edges rest. An issue in this appeal is whether the combined teachings of Stout, Bakx, and Holmes render obvious a container carrier/bottles combination satisfying these limitations. Appeal 2010-006363 Application 10/472,340 4 The Examiner finds that Stout does not disclose outwardly inclined bottom slopes on its article carrier. Ans. 4. The Examiner relies upon Bakx for its teachings of bottles within a hand-held carrier, and of a container carrier made of folded blank material and comprising outwardly inclined bottom slopes without openings. Id. The Examiner determines that it would have been obvious to provide bottles in Stout’s carrier and to provide Stout’s carrier with such inclined bottom slopes to improve insertion within a crate and improve the carrier’s appearance. Id. The Examiner does not articulate any findings with respect to the inclination of the bottom slopes of Bakx’s carrier relative to the inclination of the lower edges of the bottles, and appears to acknowledge that Bakx is silent in this regard. The Examiner’s rejection relies on a finding that Holmes teaches a bottle carrier having outwardly inclined bottom slopes having “an inclination that is close to the bottle heel (lower bottle edge).” Ans. 4-5. The Examiner determines it would have been obvious to provide the carrier of Stout, as modified in view of Bakx, with dimensions (presumably including inclinations of bottom slopes) matching those of the bottles as taught by Holmes “in order to restrain bottle movement during transport.” Ans. 5. Holmes discloses a bottle carrier provided with cutouts 56 forming bottle heel receiving openings in the respective side panels, at the bases thereof, and in the inner and outer closure panels, to permit the heels H of the bottles to project through the side panels and interlock the bottles with the bottle carrier to prevent movement of the bottles relative to the bottle carrier. Col. 4, ll. 52-62. As shown in figure 4, which depicts the heels H of the bottles protruding outwardly of the carrier through openings 56 formed in the bottom slopes of the carrier, the inclination of the carrier bottom Appeal 2010-006363 Application 10/472,340 5 slopes toward the middle of the carrier exceeds somewhat the inclination of the bottle heels toward the bottle axes. The Examiner proposes to apply to Stout’s modified carrier the teachings of Holmes with respect to the relative dimensions/slopes of the bottle carrier and the bottles, while ostensibly ignoring the openings in Holmes’ carrier bottom slopes. Ans. 5, 8 (asserting “[t]he fact that Holmes also provides for apertures does not detract from this ‘approximate’ equivalence”). However, to the extent that Holmes teaches anything about the relative dimensions/inclinations of the carrier bottom slopes and the lower bottle edges, Holmes provides those teachings within the context of bottle carriers provided with bottle heel receiving openings for interlocking the bottles with the carrier to prevent movement of the bottles with respect to the carrier. Consequently, the Examiner’s attempt to apply to Stout’s modified carrier the teachings of Holmes with respect to the relative dimensions/slopes of the bottle carrier bottom slopes and the bottles, to the exclusion of the openings in Holmes’ carrier bottom slopes, amounts to impermissibly picking and choosing from Holmes only those aspects necessary to reconstruct Appellants’ claimed invention to the exclusion of other parts necessary to the full appreciation of what Holmes fairly suggests to one of ordinary skill in the art.1 See Bausch & Lomb, Inc., v. Barnes Hind/Hydrocurve, Inc., 796 F.2d 443, 448 (Fed. Cir. 1986) (holding that “[i]t is impermissible within the framework of section 103 to pick and choose from any one reference only so much of it as will support a given position to the exclusion of other parts necessary to the full appreciation of 1 Provision of bottle heel receiving openings in Stout’s carrier as taught by Holmes would result in openings in the area on which the lower bottle edges rest, which are excluded by claim 1. Appeal 2010-006363 Application 10/472,340 6 what such reference fairly suggests to one skilled in the art.”) (quoting In re Wesslau, 353 F.2d 238, 241 (CCPA 1965)). For the above reasons, the combined teachings of Stout, Bakx, and Holmes do not render obvious a container carrier/bottles combination as called for in claim 1. We do not sustain the rejection of claim 1 and its dependent claims 3, 5-8, 10-12, and 15. The Examiner’s rejections of claim 9, which depends indirectly from claim 1, as unpatentable over Stout, Bakx, Holmes, and Holley, and of claim 17, which, like claim 1, requires that the inclination of the outwardly inclined bottom slopes of the container carrier toward the middle wall be approximately equal to or exceed somewhat the inclination of the lower bottle edges toward the bottle wall axis, and that the bottom slopes be without openings, at least in the area on which the lower bottle edges rest, as unpatentable over Stout, Bakx, Holmes, and Broskow, suffer from the same deficiency as the rejection of claim 1, discussed above. Thus, we also do not sustain the rejections of claims 9 and 17. DECISION The Examiner’s decision rejecting claims 1, 3, 5-12, 15, and 17 is reversed. REVERSED hh Copy with citationCopy as parenthetical citation