KHS CORPOPLAST GMBH

Patent Trials and Appeals BoardDec 2, 2020

2020002845 (P.T.A.B. Dec. 2, 2020)

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. 15/104,235 06/13/2016 Michael LINKE MBO-41021 7971 75628 7590 12/02/2020 RANKIN, HILL & CLARK LLP P.O. Box 1150 BONITA SPRINGS, FL 34133-1150 EXAMINER FRY, PATRICK B ART UNIT PAPER NUMBER 3731 NOTIFICATION DATE DELIVERY MODE 12/02/2020 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): 75628@rankinhill.com digges@rankinhill.com shea@rankinhill.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHAEL LINKE, ROLF BAUMGARTE, and MICHAEL LITZENBERG Appeal 2020-002845 Application 15/104,235 Technology Center 3700 Before BRETT C. MARTIN, MICHAEL J. FITZPATRICK, and BRANDON J. WARNER, Administrative Patent Judges. MARTIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1−3, 6−10, 12 and 13. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as KHS Corpoplast GmbH. Appeal Br. 3. Appeal 2020-002845 Application 15/104,235 2 CLAIMED SUBJECT MATTER The claims are directed “to a method for producing a container filled with a liquid product in which a preform consisting of a thermoplastic material is stretched after a thermal conditioning with a stretching rod and is shaped in an inflation process to the container.” Spec. 1. Claim 1, reproduced below, is illustrative of the claimed subject matter Claim1: A method for producing a container filled with a liquid product from a thermally conditioned preform made of a thermoplastic material, the method comprising steps of: stretching the preform in a blowing form with a stretching rod; and inflating the perform [sic] in the blowing form to form the preform into the container and fill the container with the liquid product; wherein the inflating step includes introducing a first fluid at a first pressure level into the preform in a pre-blowing phase, and introducing a second fluid at a second pressure level that is greater than the first pressure level into the preform in a main blowing phase, wherein the first fluid is a blowing gas, wherein the second fluid is the liquid product, wherein the blowing gas comprises a mixture of at least two different supplied gases, wherein one of the at least to [sic] different supplied gases is carbon dioxide, and wherein at least a part of the carbon dioxide in the blowing gas separates out of the blowing gas and carbonates the liquid product in container at a conclusion of the main blowing phase. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Wates US 4,827,965 May 9, 1989 Clüsserath US 6,463,964 B2 Oct. 15, 2002 Wauters US 2011/0215509 A1 Sept. 8, 2011 Fevre et al. US 2013/0113143 A1 May 9, 2013 Appeal 2020-002845 Application 15/104,235 3 Haesendonckx et al. US 2013/0307197 A1 Nov. 21, 2013 REJECTIONS Claims 1 and 7 are rejected under 35 U.S.C. § 112(a). Final Act. 2. Claims 1–3 are rejected under 35 U.S.C. § 103 as being unpatentable over reference Fevre et al. in view of references Wauters and Clüsserath. Final Act. 4. Claim 6 is rejected under 35 U.S.C. § 103 as being unpatentable over reference Fevre et al. in view of references Wauters and Clüsserath as applied to claim 1 above, and further in view of reference Haesendonckx et al. Final Act. 8. Claims 7–9 are rejected under 35 U.S.C. § 103 as being unpatentable over reference Fevre et al. in view of references Wauters, Clüsserath, and Wates. Final Act. 8. Claim 10 is rejected under 35 U.S.C. § 103 as being unpatentable over reference Fevre et al. in view of references Wauters, Clüsserath, and Wates as applied to claim 7 above, and further in view of reference Walker. Final Act. 12. Claims 12–13 are rejected under 35 U.S.C. § 103 as being unpatentable over reference Fevre et al. in view of references Wauters, Clüsserath, and Wates as applied to claim 7 above, and further in view of reference Haesendonckx et al.. Final Act. 13. Claims Rejected 35 U.S.C. § Reference(s)/Basis 1, 7 112(a) Enablement 1–3 103 Fevre, Wauters, Clüsserath 6 103 Fevre, Wauters, Clüsserath, Haesendonckx 7–9 103 Fevre, Wauters, Clüsserath, Wates, Appeal 2020-002845 Application 15/104,235 4 10 103 Fevre, Wauters, Clüsserath, Wates, Walker 12–13 103 Fevre, Wauters, Clüsserath, Wates, Haesendonckx OPINION Enablement The Examiner rejects claims 1 and 7 for lack of enablement for the carbonization limitation found in both claims. According to the Examiner, “[t]he Specification does not explain what further conditions are required that is implied by the carbonization limitation.” Ans. 4. Appellant directs the Examiner to specific passages in the Specification that explain the conditions and how the carbonization occurs. Appeal Br. 8. These passages fully disclose how the carbonization limitation of the claims occurs. It is thus unclear why the Examiner has rejected the claims for lack of enablement. Accordingly, we do not sustain the rejection. Obviousness All of the prior art rejections rely on the Examiner’s combination of Fevre and Wauters. The Examiner finds that Fevre discloses all of the limitations of claim 1 except for the blowing gas comprising a mixture of at least two different gasses, one of which is carbon dioxide and at least a part of the carbon dioxide separating out of the blowing gas to carbonate the liquid product. Final Act. 5. The Examiner next finds that Fevre teaches the composition of the gas and that the pressure state found in Wauters would cause carbonization when the gas includes carbon dioxide as found in Wauters. Id. The Examiner cites Clüsserath as evidence for “when a liquid product and carbon dioxide within a container [] are pressurized to a high Appeal 2020-002845 Application 15/104,235 5 pressure level, . . . it is inherent that at least a part of said carbon dioxide is absorbed into the liquid product and carbonates the liquid product.” Id. at 6. Appellant argues that the combination fails to teach the carbonization because the purpose of Fevre is actually to evacuate as much of the blowing gas as possible and that “[i]t is clear from the overall teaching of Fevre et al. that it is not desirable or intended for any blowing gas to remain.” Reply Br. 3. Appellant notes that Fevre specifically states “that a small pocket of blowing gas ‘may possibly remain’ … ‘without adversely affecting the implementation of this third step.” Id. (citing Fevre ¶ 84). We agree. Appellant further points out that the likelihood of any pressurization leading to carbonization is further diminished because the gas “would decompress and occupy the space taken up in the container after removal of the stretching rod.” Appeal Br. 14. The Examiner relies on inherency in finding that the combined method of Fevre and Wauters would lead to carbonization, but inherency cannot rely merely on possibilities and must necessarily occur. Given that Appellant has shown that carbonization is neither intended nor likely to occur from the combined teachings, and the Examiner has provided insufficient evidence that carbonization would necessarily occur in the proposed combination, we agree that the Examiner has failed to show claim 1 would have been obvious. This same deficiency extends to the rejections of the remaining claims, each of which recites, or incorporates through dependency, a “carbonat[ion]” limitation. CONCLUSION The Examiner’s rejections are REVERSED. More specifically, Appeal 2020-002845 Application 15/104,235 6 DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 7 112(a) Enablement 1, 7 1–3 103 Fevre, Wauters, Clüsserath 1–3 6 103 Fevre, Wauters, Clüsserath, Haesendonckx 6 7–9 103 Fevre, Wauters, Clüsserath, Wates 7–9 10 103 Fevre, Wauters, Clüsserath, Wates, Walker 10 12, 13 103 Fevre, Wauters, Clüsserath, Wates, Haesendonckx 12, 13 Overall Outcome 1–3, 6–10, 12, 13 REVERSED