Ex Parte Widmer et alDownload PDFPatent Trial and Appeal BoardMar 31, 201712524308 (P.T.A.B. Mar. 31, 2017) Copy Citation 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): USPTO@SHOMAT.COM patent @ nhpat. com 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 We AFFIRM. 1 Claims 49—53 are pending and withdrawn.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 2 Appeal 2014-005008 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- 3 Appeal 2014-005008 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. 4 Appeal 2014-005008 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. 5 Appeal 2014-005008 Application 12/524,308 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) 6 Appeal 2014-005008 Application 12/524,308 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. 7 Appeal 2014-005008 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 8 Copy with citationCopy as parenthetical citation