Ex Parte Zuser et alDownload PDFPatent Trial and Appeal BoardMar 21, 201713818820 (P.T.A.B. Mar. 21, 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. 13/818,820 05/31/2013 Wilhelm Zuser BPP319 3722 23581 7590 03/23/2017 KOLISCH HARTWELL, P.C. 200 PACIFIC BUILDING 520 SW YAMHILL STREET PORTLAND, OR 97204 EXAMINER PERREAULT, ANDREW D ART UNIT PAPER NUMBER 3788 NOTIFICATION DATE DELIVERY MODE 03/23/2017 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): docketing @khpatent.com veronica@khpatent.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WILHELM ZUSER, ROBERT AFFLENZER, and GUNTER ZIEGELWANGER Appeal 2015-0071901 Application 13/818,8202 Technology Center 3700 Before HUBERT C. LORIN, BRUCE T. WIEDER, and KENNETH G. SCHOPFER, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 from the rejection of claims 1—10. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Our decision references the Appeal Brief (“Br.,” filed Feb. 11, 2015); the Examiner’s Answer (“Ans.,” mailed June 29, 2015); and Final Office Action (“Final Act.,” mailed Sept. 4, 2014). 2 According to Appellants, the real party in interest is Constantia Teich GmbH. Br. 4. Appeal 2015-007190 Application 13/818,820 BACKGROUND According to Appellants, the Specification relates to a “bottle, for pills, tablets, coated tablets, powders, and other goods offered in the form of pieces . . ., and especially to a closure for such a bottle.” Spec. 11. CLAIMS Claims 1—10 are on appeal. Claim 1 is the only independent claim on appeal and recites: 1. A system for dispensing a product in piecemeal fashion, comprising: a bottle containing the product in loose form, the bottle having an opening defined by a circumferential, circular sealing edge; and a seal having at least two layers, including an inner layer that is sealed to the circumferential, circular sealing edge of the bottle, the inner layer including a curved or kinked slit disposed eccentrically to a center of the inner layer, the slit defining a tongue area which, in its area lying closest to the sealing edge, has a portion that is concave with respect to a center of the circle; and an outer layer that is removably attached to the inner layer across an entire surface of the inner layer; wherein the seal is configured so that upon removal of the outer layer the tongue area remains attached to the inner layer. Br. 36. REJECTIONS 1. The Examiner rejects claims 1—10 under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement. 2 Appeal 2015-007190 Application 13/818,820 2. The Examiner rejects claims 1—10 under 35 U.S.C. § 102(b) as anticipated by Licha.3 3. The Examiner rejects claims 1—10 under 35 U.S.C. § 103(a) as unpatentable over Niederer4 in view of Gundermann.5 DISCUSSION Written Description With respect to claim 1, the Examiner finds that the limitation “wherein the seal is configured so that upon removal of the outer layer the tongue area remains attached to the inner layer” lacks written description support in the Specification as originally filed because the “original specification merely states that ‘the closed line of weakness remains attached to the pulled-off outer sheet’ and ‘the inner cover sheet having a tongue area 4, which remains attached to the edge of the bottle 1 along a circumferential sealing edge 2.’” Final Act. 2—3. The Examiner further explains in response to Appellants’ arguments that the original Specification states that the tongue is attached to the sealing edge, which is a part of the bottle and not a part of the inner layer. Ans. 5. We find that the Examiner erred in making this rejection. The original Specification discloses: Fig. 3 shows the medicine bottle 1 with the outer sheet pulled off, and thus with the tamper-evident closure opened, and the cover sheet having a tongue area 4 and a cover sheet 3, which remains attached to the edge of the bottle 1 along a 3 Lichaet al., DE 19523754 Al, pub. Jan 16, 1997. 4 Niederer et al., US 7,789,262 B2, iss. Sept. 7, 2010. 5 Gundermann, DE 2327206, pub. Dec. 19, 1974. 3 Appeal 2015-007190 Application 13/818,820 circumferential sealing edge 2, after the tamper-evident closure has been peeled off, and covers the bottle opening. Spec. 123. This portion of the Specification specifically discloses that the tongue area 4 remains attached to the inner layer/cover sheet 3 after the outer layer has been peeled off. Thus, the claim language requiring that “the tongue area remains attached to the inner layer” is supported in the Specification as originally filed. Accordingly, we do not sustain the rejection of claims 1—10 under § 112, first paragraph. Anticipation With respect to claim 1, the Examiner finds that Licha6 discloses a system as claimed including an inner layer 6 and a slit/tongue 12 and that “the tongue area is part of the inner layer and therefore remains attached to the inner layer.” Final Act. 3. We are persuaded by Appellants’ argument that the Examiner erred in making this finding. In particular, the Examiner has not shown that the device is configured such that the tongue area remains attached to the inner layer when the outer layer is removed. Rather, Licha indicates in Figure 2 that the tongue area is removed with the outer layer 7 such that an opening 11 is created. Licha Fig. 2; see also Br. 30. Accordingly, we do not sustain the rejection of independent claim 1 or dependent claims 2—10 under § 102(b). Obviousness With respect to claim 1, the Examiner finds that Niederer discloses a system as claimed except that Niederer does not disclose a slit and tongue 6 We note that the Examiner and Appellants refer to Licha as Hueck, in reference to the assignee of the reference. However, we refer to this reference herein as Licha, based on its first named inventor. 4 Appeal 2015-007190 Application 13/818,820 area. Final Act. 4 (citing Niederer Fig. 1, 2). Regarding these missing elements, the Examiner relies on Gundermann and concludes that it would have been obvious to modify Niederer in view of Gundermann “to assist in the opening of the inner layer (as shown in Gundermann figures 1—3).” Final Act. 4. We are persuaded by Appellants’ argument that the Examiner erred by not providing an adequate rationale for making the proposed combination of art. See Br. 32—34. Rejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness. See KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d F.3d 977, 988 (Fed. Cir. 2006)). We agree with Appellants that the Examiner’s proposed motivation is conclusory and lacks any rational underpinning to support the Examiner’s ultimate conclusion of obviousness. In the rejection, the Examiner indicates that Gundermann Figures 1—3 show how the configuration of a tongue as claimed would have assisted in the opening of the inner layer. However, without further explanation, we fail to see any indication in the figures that this is the case. Further, in response to Appellants’ arguments, the Examiner restates the rejection and also states: Therefore, based on KSR and based on the knowledge available to one of ordinary skill in the art, one of ordinary skill in the art would combine the above references. For example, but not limited to, the Office notes that Niederer may be used in microwave applications and it was well known to provide multiple opening features as to create a small opening on a layer before microwaving in order to permit steam to escape the device during the microwave operation while still including the existing 5 Appeal 2015-007190 Application 13/818,820 opening tab to remove the entire layer when the user desires accessing the contents in their entirety. Ans. 8. The Examiner appears to acknowledge that Niederer includes a pull tab 20’ for removing the inner layer, and the Examiner provides an alternative rationale for the proposed combination. However, we find that this alternative rationale is also lacking in any rational underpinning to support the Examiner’s conclusion of obviousness. In particular, Niederer already discloses perforations 6 in the inner layer for venting during microwaving, and thus, it is unclear why one of ordinary skill in the art would have found it obvious to add a slit/tongue from Gundermann “to provide multiple opening features to create a small opening on a layer before microwaving in order to permit steam to escape.” See Niederer col. 1, 11. 35—38; see also Br. 33. For these reasons, we find that the Examiner erred in rejecting claims 1—10 as obvious, and thus, we do not sustain the rejection under § 103(a). CONCLUSION For the reason set forth above, we REVERSE the rejections of claims 1-10. REVERSED 6 Copy with citationCopy as parenthetical citation