Ex Parte Zuser et al

Patent Trial and Appeal Board

Mar 21, 2017

13818820 (P.T.A.B. Mar. 21, 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.
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