Ex Parte Widmer et al

Patent Trial and Appeal Board

Mar 31, 2017

12524308 (P.T.A.B. Mar. 31, 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.
12/524,308 07/23/2009 Sebastien Cedric Widmer 6395 7704
26936 7590 04/04/2017
SHOEMAKER AND MATT ARE, LTD
c/o DAVIS & BUJOLD, P.L.L.C.
112 PLEASANT STREET
CONCORD, NH 03301
EXAMINER
MATHEW, FENN C
ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
04/04/2017 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):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SEBASTIEN CEDRIC WIDMER, LINO DREYER,
and PHILIPPE GERARD ODET
Appeal 2014-005008
Application 12/524,308
Technology Center 3700
Before JOHN C. KERINS, RICHARD H. MARSCHALL, and
ARTHUR M. PESLAK, Administrative Patent Judges.
MARSCHALL, Administrative Patent Judge.
DECISION ON APPEAL
Sebastien Cedric Widmer, Lino Dreyer, and Philippe Gerard Odet
(Appellants) seek our review under 35 U.S.C. § 134 of the Examiner’s final
decision rejecting claims 18, 25, 27—30, 32, 35, and 48.1 Appeal Br. 2. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Claims 49—53 are pending and withdrawn. Appeal Br. 2.
Appeal 2014-005008
Application 12/524,308
THE CLAIMED SUBJECT MATTER
Appellants’ claimed subject matter relates to closure caps having a
tamper-evident feature. Spec. 1. The tamper-evident feature, such as a band
encircling the bottom of the cap, indicates whether the container has been
opened. Id. Claims 18, 27, and 48 are independent. Claim 18 is illustrative
of the claimed subject matter and is reproduced below.
18. A closure cap comprising
a top panel,
a cylindrical skirt depending form the periphery of the
top panel and
a tamper indicating band, frangibly connected to an open
end of the skirt,
wherein the tamper evident band at a lower edge
comprises a hingedly connected annular retaining band, which
extends radially inwardly and towards the top panel when the
cap is in a screwed on position,
the annular retaining band having at least one projection
with a closure engagement surface, the projection extending
radially towards the inside of the cap so as to engage under an
engagement surface of a retaining structure arranged on a
container neck when the cap is in the screwed on position and
wherein the annular retaining band has at least one axial
extension, having an axial length selected such that a free edge
of the extension extends above the axial level of the retaining
structure when the cap is in the screwed on position and
wherein the axial distance from the lower edge of the
tamper indicating band to the closure engagement surface of the
at least one projection is smaller than the axial distance from
the lower edge of the tamper indicating band to the free edge of
the axial extension and
wherein the tamper indicating band comprises at least
one anti-rotational element adapted to engage a corresponding
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Application 12/524,308
element on the container neck in a circumferential direction to
reduce an opening angle necessary for breaking the tamper
indicating band at the line of weakness such that the line of
weakness breaks before sealing of the closure is released.
Appeal Br. 8 (Claims App.).
THE EVIDENCE
The Examiner relied upon the following prior art references in
rejecting the claims on appeal:
Ochs US 4,875,594 Oct. 24, 1989
Takamatsu US 5,950,850 Sept. 14, 1999
Falzoni US 2006/0283828 A1 Dec. 21,2006
THE REJECTION
Appellants seek review of the Examiner’s rejection of claims 18, 25,
27—30, 32, 35, and 48 under 35 U.S.C. § 103(a) as unpatentable over
Falzoni, Ochs, and Takamatsu.
ANALYSIS
Claim 18
With respect to claim 18, the Examiner found that Falzoni discloses
the majority of the claim limitations, but does not disclose the claimed “anti-
rotational element” that reduces the opening angle necessary to break the
band “at the line of weakness such that the line of weakness breaks before
sealing of the closure is released.” Final Act. 2—3. The Examiner found that
Ochs discloses the claimed anti-rotational element and determined that it
would have been obvious to modify the cap of Falzoni to include the anti-
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Application 12/524,308
rotational element of Ochs “in order to provide a clear indication of
tampering.” Id. at 4. The Examiner also found that “Takamatsu discloses
breaking the tamper indicating band at the line of weakness such that the line
of weakness breaks before sealing of the closure is released.” Id. The
Examiner determined that it would have been obvious to modify the cap
taught by Falzoni and Ochs to include this aspect of Takamatsu “in order to
increase the tamper evidence of the container.” Id.
In the Appeal Brief, Appellants acknowledge that the first four
limitations of claim 18 “are an old combination.” Appeal Br. 4. Appellants
then list the four remaining limitations of claim 18, labelled a-d, and
acknowledge that these limitations “are disclosed separately in the prior art.”
Id. at 4—5. Appellants argue that the limitations are not disclosed “in
combination” and that the “prior art as a whole does not suggest the
combination of features a-d or otherwise render that combination obvious.”
Id. at 5. Appellants then address each prior art reference individually,
asserting that (1) “Falzoni does not disclose the anti-rotational element”; (2)
“Ochs does not suggest the combination of elements a, b and d”; and (3)
Takamatsu accomplishes the goal of breaking the band before the seal “in a
different way” compared to the specification, “teaches away,” and “does not
suggest the combination of elements a, b and d.” Id. at 5—6. Finally,
Appellants note that claims 27 and 48 “contain the limitations of claim 18,
and additionally require the anti-rotation element to be arranged on the axial
extension of the retaining element.” Id. at 6. Appellants argue that “[n]one
of the references provide a tamper-evident band with a retaining element”
that includes the limitations of claims 27 and 48.
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Application 12/524,308
We are not persuaded that the Examiner erred in the findings
regarding the disclosures of the prior art or in the determination that it would
have been obvious to modify Falzoni by employing the noted features of
Ochs and Takamatsu. Appellants’ arguments, for the most part, do not
directly address or challenge the Examiner’s specific findings. For example,
Appellants admit that the prior art discloses the limitations of claim 18, but
do not directly argue that the Examiner erred in the stated rationale for
combining the prior art. Appeal Br. 4—6. Instead, Appellants attack the
references individually rather than as the combination proposed by the
Examiner in the rejection. Id. at 5—6. As the Examiner notes in the Answer,
“[o]ne cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references. Ans. 4 (citing
In re Keller, 642 F.2d 413 (CCPA 1981)). Further, Appellants’ approach
leads to arguments that address findings that the Examiner did not rely upon
in the rejection. The Examiner readily acknowledges, for example, that
“Falzoni does not disclose the anti-rotational element” and that Ochs “does
not suggest the combination of elements a, b and d” as alleged by
Appellants. Id. at 3^4; Appeal Br. 5. Appellants’ arguments that essentially
make the same points conceded by the Examiner do not apprise us of error
in the Examiner’s findings.
Appellants’ “teaching away” argument with respect to Takamatsu
goes further by addressing the combination of Takamatsu with Falzoni and
Ochs, see Appeal Br. 6, but we agree with the Examiner that it “is unclear
what disclosure in Takamatsu Appellants are] relying on for this statement,
as none has been cited.” Ans. 4.
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To the extent that Appellants argue that Takamatsu teaches away
because it operates in a different way than the structure in the specification,
we disagree. As an initial matter, we are not persuaded that the Examiner
erred in concluding that, in a broad sense at least, the “operation of
Takamatsu is the same as the present invention.” Ans. 4. Appellants argue
that the Examiner ignores salient structural differences between Takamatsu
and the device disclosed in the specification. Appeal Br. 5—6; Reply Br. 5—
6. Even if structural differences are present, however, claim 18 does not
claim that specific structure as part of the “anti-rotational element.” Appeal
Br. 8 (Claims App.). Moreover, Appellants have not established that
Takamatsu “criticize[s], discredits] or otherwise discourage[s]” a
combination with the structure of Falzoni, or Falzoni and Ochs. See In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Appellants’ argument that “it
is not clear how the disclosure of Falzoni as modified by Ochs could or
would be further modified” by Takamatsu to meet the claim limitations does
not establish that Takamatsu “teaches away” from the proposed
combination, nor does it directly address the Examiner’s stated rationale for
modifying the Falzoni/Ochs combination with selected teachings from
Takamatsu. Reply Br. 6; see Fulton, 391 F.3d at 1201; Final Act. 4. Under
these circumstances, we are not persuaded that Takamatsu teaches away
from the combination relied on by the Examiner or that the Examiner erred
in determining that it would have been obvious to modify the Falzoni/Ochs
combination by adding the recited feature from Takamatsu.
Appellants make a number of new arguments in the Reply Brief that
did not appear in the Appeal Brief. For example, Appellants argue that (1)
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Falzoni fails to disclose the claimed “projection,” (2) the “combination of
Falzoni and Ochs is incompatible” and based on “hindsight,” and (3) Ochs
and Falzoni are in different fields and “inherently incompatible.” Reply Br.
2—5. Appellants waived these arguments because they were made for the
first time in a Reply Brief, are not responsive to any new argument raised in
the Examiner’s Answer, and Appellants have not shown good cause for us to
consider them. 37 C.F.R. 41.41(b)(2) (2014).2
Based on the foregoing, we sustain the Examiner’s rejection of
independent claim 18.
Remaining Claims
Appellants’ arguments for claim 18 apply to independent claims 27
and 48 because they “contain the limitations of claim 18,” and therefore the
analysis above with respect to those limitations applies to claims 27 and 48.
Appeal Br. 6. With respect to claims 27 and 48, Appellants also argue that
[njone of the references provide a tamper-evident band and
retaining element “which extends radially inwardly and towards
the top panel when the cap is in the screwed on position” and
wherein the retaining element has an axial extension which
extends axially above a retaining structure on the container and
“at least one anti-rotational element is arranged on [the] axial
extension.”
Id. (second alteration in original). This one-sentence argument does not
include any citations in support of it in the record or further explanation. In
addition, the assertion that “none of the references” teaches all of the cited
limitations again addresses the references individually rather than
2 We considered Appellants’ arguments related to Takamatsu in the Reply
Brief, as noted above, to the extent that it tracks the arguments made
regarding Takamatsu in the Appeal Brief.
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Application 12/524,308
considering the combination of references relied on in the rejection. The
Examiner relied on a combination of the prior art with respect to these
limitations as well as claims 27 and 48 as a whole. See Final Act. 5—10.
Appellants’ arguments regarding claims 27 and 48 do not apprise us of error
in the Examiner’s rejection of those claims, and we therefore sustain the
rejection of claims 27 and 48.
Appellants do not raise any additional arguments regarding dependent
claims 25, 28—30, 32, and 35. We therefore sustain the rejection of those
claims for the same reasons discussed above.
DECISION
We affirm the decision of the Examiner to reject claims 18, 25, 27—30,
32, 35, and 48 under 35 U.S.C. § 103(a).
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).
AFFIRMED
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