Ex Parte Tauber et al

Patent Trial and Appeal Board

Sep 26, 2014

11626790 (P.T.A.B. Sep. 26, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte JOHN TAUBER and DUANE SAWYER
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Appeal 2011-010986
Application 11/626,790
Technology Center 3700
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Before JENNIFER D. BAHR, STEVEN D.A. McCARTHY and
CHARLES N. GREENHUT, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

The Appellants1 appeal under 35 U.S.C. § 134 (2010) from the 1
Examiner’s final decision rejecting claims 1, 3, 510, 18, 19 and 36. The 2
Appellants canceled claims 2 and 4. The Examiner has withdrawn claims 3
1117 and 2035 from consideration. The Examiner rejects claims 1, 3, 9, 4
10, 18, 19 and 36 under 35 U.S.C. § 103(a) (2010) as being unpatentable 5
over Moore (US 5,058,772, issued Oct. 22, 1991) and Reid ′233 (US6

1 The Appellants identify the real party in interest as Berry Plastics
Holding Corporation.
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5,662,233, issued Sep. 2, 1997);2 and claims 58 under § 103(a) as being 1
unpatentable over Moore, Reid ′233 and Dutt (US 5,020,682, issued Jun. 4, 2
1991). We have jurisdiction under 35 U.S.C. § 6(b) (2010). 3
We AFFIRM. 4
Claims 1, 18 and 36 are independent. Claim 1, 5 and 18 are 5
dispositive of the issues on appeal. Claim 1 is reproduced with italics added 6
for emphasis: 7
1. A package comprising 8
a neck finish formed to include a wide-mouth opening 9
and adapted to mate with a container formed to include an 10
interior region to place the wide-mouth opening in 11
communication with the interior region, 12
a preassembled closure unit configured to mate with the 13
neck finish to close the wide-mouth opening into the interior 14
region of the container, the preassembled closure unit including 15
a pour spout having a fluid-discharge outlet and a closure cap 16
configured to mate with the pour spout to cover the fluid-17
discharge outlet and separate from the pour spout while the 18
pour spout is mated with the neck finish to expose the fluid-19
discharge outlet, the pour spout including a finish mount and a 20
discharge tube coupled to the finish mount, the discharge tube 21
having an inner portion formed to include a fluid-admission 22

2 The Examiner and the Appellants have used the name “Reid” to
identify both Reid ′233 and its continuation-in-part, Reid ′322 (US
5,975,322, issued Nov. 2, 1999). (Compare Ans. 4,,citing Reid ′233; Office
Action mailed January 19, 2010 at 6, citing Reid ′233; App. Br. 1 and 6,
citing Reid ′233) with Reply Br. 2 quoting Reid ′322). On multiple
occasions, the Examiner cited Reid ′322 rather than Reid ′233 as the “Reid”
reference on which the Examiner based the rejections on appeal. (See Ans.
3, citing Reid ′322; “Notice of References Cited” (Form PTO-892) mailed
with the Office Action on January 19, 2010, listing Reid ′322). It is our
understanding that the Examiner relies on Reid ′233 rather than on Reid ′322
in the rejections on appeal.
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inlet arranged to open into the interior region of a container 1
mated with the neck finish and an outer portion formed to 2
include the fluid-discharge outlet, the finish mount providing 3
means for retaining the pour spout in a stationary, anchored 4
position on the neck finish to place the fluid-admission inlet 5
formed in the discharge tube in communication with the interior 6
region of a container mated to the neck finish when the 7
preassembled closure unit is first mated with the neck finish to 8
close the wide-mouth opening into the interior region of the 9
container and during later movement of the closure cap between 10
a capped position covering the fluid-discharge outlet of the 11
discharge tube and an uncapped position uncovering the fluid-12
discharge outlet of the discharge tube, 13
wherein the neck finish includes a spout catch retainer 14
and the finish mount of the pour spout includes a rim formed to 15
include an opening receiving the neck finish therein and a spout 16
catch coupled to the rim and configured to mate with the spout 17
catch retainer included in the neck finish to fasten the pour 18
spout to the neck finish so as to place the fluid-admission inlet 19
formed in the discharge tube in communication with the interior 20
region of a container mated to the neck finish and to allow 21
separation of the closure cap from the pour spout while the pour 22
spout is fastened to the neck finish, 23
wherein the finish mount of the pour spout further 24
includes a drainback cup having an outer edge coupled to the 25
rim and an inner edge coupled to the discharge tube, the 26
drainback cup cooperates with the discharge tube to form a 27
product-drainback reservoir arranged to surround the discharge 28
tube and to receive fluid material exiting the fluid-discharge 29
outlet of the discharge tube, the drainback cup is formed to 30
include a product-drainback aperture to allow any fluid material 31
extant in the product-drainback reservoir to flow therethrough 32
into the interior region of a container mated with the neck finish 33
when the pour spout is fastened to the neck finish, and the rim 34
of the finish mount includes an outer surface arranged to face 35
outwardly toward a portion of the closure cap when the closure 36
cap is mated with the neck finish and an inner surface arranged 37
to face inwardly toward the neck finish when the pour spout is 38
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fastened to the neck finish, and wherein the spout catch is 1
coupled to the inner surface of the rim of the finish mount, and 2
wherein the closure cap includes a cap side wall having 3
an interior surface arranged to face toward the outer surface of 4
the rim of the finish mount when the closure cap is arranged to 5
mate with the pour spout, the closure cap further includes a 6
first cap lug coupled to the interior surface of the cap side wall 7
and the pour spout further includes a first cap-lug lock 8
manager that is arranged to mate with the first cap lug to retain 9
the pour spout in a preassembled position relative to the 10
closure cap to form the closure unit prior to fastening of the 11
pour spout to the neck finish, and the spout catch and the spout 12
catch retainer cooperate to define means for retaining the pour 13
spout in a stationary, anchored position on the neck finish 14
during unmating of the first cap lug and the first cap-lug lock 15
manager to separate the closure cap from the pour spout to 16
expose the fluid-discharge outlet formed in the pour spout. 17
18
ISSUES 19
This appeal turns on three issues: 20
First, would the subject matter of claim 1 have been 21
obvious from the combined teachings of Moore and Reid ′233? 22
(See App. Br. 7). 23
Second, does Moore describe “anchor means for mating 24
with the preassembled closure unit to the container neck finish” 25
as recited in claims 18 and 36? (See App. Br. 911). 26
Third, would the substitution of a threaded coupling and 27
a spout catch/spout catch retainer described by Dutt for a 28
threaded coupling and spout catch/spout catch retainer of 29
Moore’s package have been a sufficiently simple substitution to 30
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justify concluding that the subject matter of claim 5 would have 1
been obvious? (See App. Br. 12). 2
3
FINDINGS OF FACTS 4
The record supports the following findings of fact (“FF”) by a 5
preponderance of the evidence. 6
7
Moore 8
1. We adopt and incorporate by reference the Examiner’s findings 9
at page 4, line 9 to page 5, line 6 of the Answer (starting with “[r]egarding 10
claims 1, 9 and 10, Moore shows a package…” and ending with “…the 11
interior of the rim (col. 3, ll. 3-4).”). (See also Moore, col. 3, ll. 315; col. 4, 12
ll. 3357 and Fig. 1). 13
2. The package of Moore includes a container neck finish 16. 14
(Moore, col. 2, ll. 5456 and Fig. 1; Ans. 6). The package also has a closure 15
10 including a spout portion 24 and a cap portion 26. (Moore, col. 2, ll. 16
6263 and Fig. 1). The Examiner correctly finds that the neck finish 16 17
includes anchor means in the form of threads 18 and locking formations 18
(that is, raised detents) 22. The threads 18 engage threads 38 on an inner 19
surface of a skirt 37 of the spout portion 24. The locking formations 22 20
mate with ratchet teeth 80 of the preassembled closure 10 to prevent 21
undesired removal of the spout 24. (Moore, col. 2, 5658; col. 3, ll. 19; 22
col. 4, ll. 37 and ll. 3339; Ans. 6). 23
3. The closure cap 26 of Moore includes a cap side wall 56 having 24
threads 58 on an interior surface 60. A comparison of Figures 1 and 7 of 25
Moore indicate that the threads 58 face toward threads 40 on the outer 26
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surface 42 of the rim of the finish mount 28 when the closure cap 26 is 1
arranged to mate with the pour spout 24. (Moore, col. 3, ll. 2026 and col. 2
4, ll. 4246; Ans. 4–5). 3
4
Reid ′233 5
4. Reid ′233 describes a bottle 10 including a neck finish 17 and a 6
closure assembly 11. The closure assembly 11 includes a generally tubular, 7
closed-top sleeve member 13 and an elastomeric plug 25. (Reid ′233, col. 4, 8
ll. 1420; 4244 and 5455; id., Fig. 9). The sleeve member 13 seals the 9
bottle 10 by pressing the plug 25 into the mouth of the bottle. (Reid ′233, 10
col. 7, ll. 2838). 11
5. The neck finish 17 of the bottle 10 of Reid ′233 has external 12
threads 23. (Reid ′233, col. 4, ll. 4447 and Fig. 2). As depicted in Figure 4 13
of Reid ′233, the threads 23 are roughly sinuous in shape. The lower ends of 14
the threads 23 define terminal end stops 49. (See Reid ′233, col. 6, ll. 711). 15
As additionally depicted in Figure 4, locking bars or bosses 53 are relieved 16
from the outer surface of the neck finish 17 adjacent the terminal end stops 17
49. 18
6. The sleeve member 13 has a skirt portion 16 mounting 19
internally-projecting lugs 43. (Reid ′233, col. 3, ll. 6365; col. 4, ll. 2933; 20
and Fig. 6). When the sleeve member 13 is twisted over the neck finish 17, 21
the lugs 43 threadedly engage the threads 23 to secure the sleeve member 13 22
over the neck finish. When the sleeve member 13 is twisted over the neck 23
finish 17 so that the lugs 43 abut the terminal end stops 49 at the lower ends 24
of the threads 23, the lugs 43 are locked between the terminal end stops 49 25
and the locking bosses 53. The locking bosses 53 prevent the sleeve 26
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member 13 from “backing off” of the neck furnish 17 once the lugs 43 are 1
locked between the terminal end stops 49 and the locking bosses 53. (Reid 2
′233, col. 6, ll. 16–27 and 3547). 3
4
Dutt 5
7. Dutt describes a closure system having a neck 24 and a cap or 6
pour spout 40 with a fluid discharge outlet 54. (Dutt, col. 3, ll. 9–27 and 7
Fig. 1; Ans. 8). 8
8. The Examiner correctly finds that the spout catch of Dutt 9
includes threads 60, 62 that act as helical spout flanges. The helical spout 10
flanges 60, 62 mate with a spout catch retainer comprising external threads 11
30, 32 of the neck 24. (Ans. 8; see also Dutt, col. 3, ll. 9–10 and 36–38). 12
9. The Examiner correctly finds that the pour spout 40 of Dutt 13
includes a spout catch. The spout catch includes the combination of a first 14
lug or terminal projection 64 and a second lug (the end of the internal thread 15
60 adjacent the first lug 64) that together define a gap 66. The gap 66 which 16
acts as an anchor rib receiver. (See Ans. 8; see also Dutt, col. 3, ll. 42–48 17
and Fig. 1). The internal thread 32 on the neck 24 of Dutt ends in a hook or 18
raised anchor rib 34. (Dutt, col. 3, ll. 12–14). When the pour spout 40 is 19
tightened over the neck 24, the raised anchor rib 34 extends into the anchor 20
rib receiver 66 to mate with the first and second lugs 60, 64. (See Ans. 8; 21
see also Dutt, col. 3, ll. 49–61 and Figs. 1–3). 22
10. The Examiner correctly finds that the spout catch/spout catch 23
retainer of Dutt prevents rotation of the pour spout when an attempt is made 24
to unscrew the pour spout from the neck finish (See Ans. 9; see also Dutt 25
col. 3, ll. 59–61). 26
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ANALYSIS 1
First Issue 2
Claim 1 recites that: 3
the closure cap further includes a first cap lug 4
coupled to the interior surface of the cap side wall 5
and the pour spout further includes a first cap-lug 6
lock manager that is arranged to mate with the first 7
cap lug to retain the pour spout in a preassembled 8
position relative to the closure cap to form the 9
closure unit prior to fastening of the pour spout to 10
the neck finish.3 11
Moore describes a package having a closure 10 including a spout 12
portion 24 and a cap portion 26 which mate solely by means of 13
complementary threads 40, 58. (FF 2 and 3). The Examiner correctly finds 14
that Moore’s spout portion 24 and cap portion 26 do not include either a first 15
cap-lug lock manager or a first cap lug. (Ans. 5). Nevertheless, Reid ′233 16
describes a bottle 10 including a sleeve member 13 bearing internal lugs 43 17
for engagement with external threads 23 to secure the sleeve member 13 18
over the neck finish 17. (FF 7). The lugs 43 lock between terminal end 19
stops 49 and locking bosses 53 near lower ends of the threads 23 to prevent 20
the sleeve member 13 from “backing off” of the neck furnish 17. (Id.) The 21
Examiner correctly concludes that it would have been obvious for one of 22
ordinary skill in the art to merely substitute the lugs 43, the threads 23, 23
terminal end stops 49 and the locking bosses 53 similar to those described by 24
Reid ′233 for the complementary threads 40, 58 of Moore’s package. (Ans. 25
5 and 9–10). 26

3 Claim 18 includes almost identical language, taking into account
differences in antecedent basis.
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The Appellants argue that the combination of the lugs 43, the threads 1
23, terminal end stops 49 and the locking bosses 53 described by Reid ′233 2
would have provided functionality beyond the capabilities of Moore’s 3
threads 40, 58. Moore’s threads were not capable of locking together to 4
prevent “back off.” (See Reply Br. 23; compare FF 3 with FF 6). Second, 5
claim 1 recites that: 6
the spout catch and the spout catch retainer 7
cooperate to define means for retaining the pour 8
spout in a stationary, anchored position on the 9
neck finish during unmating of the first cap lug 10
and the first cap-lug lock manager to separate the 11
closure cap from the pour spout to expose the 12
fluid-discharge outlet formed in the pour spout. 13
The Appellants argue that the Examiner has not provided even a sound basis 14
for belief that Moore’s package, if modified by merely replacing Moore’s 15
threads 40, 58 with the lugs 43, the threads 23, terminal end stops 49 and the 16
locking bosses 53 described by Reid ′233 necessarily would satisfy this 17
limitation. (See App. Br. 7). 18
Nevertheless, it would have been obvious to substitute Moore’s 19
threads 40, 58 with the lugs 43, the threads 23, terminal end stops 49 and the 20
locking bosses 53 described by Reid ′233. The fact that the lugs 43, the 21
threads 23, terminal end stops 49 and the locking bosses 53 described by 22
Reid ′233 provide the extra functionality of preventing “back off” would not 23
have deterred or discouraged one of ordinary skill in the art from making the 24
substitution. Furthermore, one of ordinary skill in the art would have 25
recognized that the connection between the neck finish and the pour spout 26
must be stronger than the connection between the cap and the spout. The 27
variety of twistable connections described in Moore, Reid ′233 and Dutt 28
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suggest that the level of ordinary skill in the art was sufficient to accomplish 1
this. The fact that one of ordinary skill in the art might be required to 2
exercise ordinary skill to substitute one known structure for another does not 3
imply that the substitution would not have been obvious. Therefore, we 4
sustain the rejection of claims 1, 3, 9 and 10 under § 103(a) as being 5
unpatentable over Moore and Reid ′233. 6
7
Second Issue 8
Claim 18 recites a package including a preassembled closure unit and 9
a container neck finish “formed to include anchor means for mating with the 10
preassembled closure unit to the container neck finish.” Claim 36 recites a 11
package including a closure unit made up of a pour spout retained in a 12
preassembled position relative to a closure cap. The package of claim 36 13
also includes a container neck finish “formed to include anchor means for 14
mating the closure unit to the container neck finish.” Neither claim further 15
limits the structure of the “anchor means.” Therefore, this language must to 16
be construed in accordance with 35 U.S.C. § 112, sixth paragraph (2011). 17
The corresponding structure described in the Specification is a spout 18
catch retainer 584 on the neck finish 514. The spout catch retainer 584 19
includes an inclined lug guide ramp 562 coupled to an anchor rib 566. 20
(Spec., para. 111; id., Figs. 33 and 34). A pour spout 516 has a finish mount 21
545 including an annular rim 535; and a spout catch 586 provided on an 22
interior of the rim 535. The spout catch 586 includes a helical spout flange 23
583 and spout lugs 581, 582 on the interior of the annular rim 535. (See 24
Spec., para. 110; id., Figs. 33 and 34). The spout catch 586 is configured to 25
mate with the spout catch retainer 584 in the neck finish 514 “to anchor pour 26
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spout 516 in a stationary, anchored position on container neck finish 514.” 1
(Spec., para. 109; see also id., Fig. 33). 2
As depicted in Figure 34, the inclined lug guide ramp 562 threadedly 3
engages the helical spout flange 583. The anchor rib 566 engages the spout 4
lugs 581, 582 to retain the pour spout 516 on the neck finish 514 when the 5
closure cap 518 is removed. (See Spec., para. 113; see also Reply Br. 5). 6
The Examiner correctly finds that Moore’s neck finish 16 includes 7
“anchor means” in the form of threads 18 and locking formations 22. The 8
Appellant argues that the threads 18 and the locking formations 22 described 9
by Moore do not function in the same manner as the “anchor means” recited 10
in claims 18 and 36. (Reply Br. 6). The threads 18 threadedly engage 11
threads 38 on a rim or skirt 37 of the pour spout 24. The anchor means mate 12
with ratchet teeth 80 of the preassembled closure 10 to prevent undesired 13
removal of the spout 24. (Ans. 12; see also FF 2). Therefore, the threads 18 14
and the locking formations 22 do perform the identical function recited as 15
being performed by the “anchor means for mating with the preassembled 16
closure unit to the container neck finish.” We sustain the rejection of claims 17
18, 19 and 36 under § 103(a) as being unpatentable over Moore and Reid 18
′233. 1997). 19
20
Third Issue 21
Claim 5 recites: 22
The package of claim 1, wherein the spout catch of the pour 23
spout includes first and second spout lugs coupled to the 24
interior surface of the rim and arranged to lie in spaced-apart 25
relation to one another to define an anchor rib receiver 26
therebetween and the pour spout retainer of the neck finish 27
includes a raised anchor rib arranged to extend into the anchor 28
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rib receiver to mate with the first and second spout lugs to 1
establish a stationary, anchored position of the pour spout on 2
the neck finish. 3
The Examiner correctly concludes that one of ordinary skill in the art would 4
have had reason to substitute the closure system taught by Dutt (see FF 7-9) 5
for the locking formations 22 and ratchet teeth 80 described by Moore, 6
namely, to prevent “rotation of the pour spout when an attempt [was] made 7
to unscrew [the cap] from the neck finish.” (Ans. 9; see also FF 10). 8
The Appellants argue that there is no reason to provide a second 9
locking mechanism because a locking mechanism already exists in the 10
device of Moore. (App. Br. 11–12). This argument is not persuasive. The 11
Examiner concludes that it would have been obvious to substitute one 12
closure system for another. In other words, the Examiner proposes 13
removing Moore’s locking formations 22 and ratchet teeth 80; and replacing 14
those features with Dutt’s closure system. The fact that Moore already has 15
structure to prevent rotation of the pour spout when a user attempts to 16
unscrew the cap from the package does not imply that the substitution of 17
another such closure system would not have been obvious. As noted earlier, 18
“when a patent claims a structure already known in the prior art that is 19
altered by the mere substitution of one element for another known in the 20
field, the combination must do more than yield a predictable result.” KSR 21
Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). (See Ans. 13). We 22
sustain the rejection of claims 5–8 under §103 as being unpatentable over 23
Moore, Reid and Dutt. 24
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DECISION 1
We AFFIRM the Examiner’s decision rejecting claims 1, 3, 5–10, 18, 2
19 and 36. 3
4
AFFIRMED 5
6
7
mls 8