Rehrig Pacific Company

Patent Trials and Appeals BoardMar 18, 2021

2020004345 (P.T.A.B. Mar. 18, 2021)

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. 14/959,432 12/04/2015 Ryan C. Meers 67080-652 PUS1; 14547 PUS 8379 26096 7590 03/18/2021 CARLSON, GASKEY & OLDS, P.C. 400 WEST MAPLE ROAD SUITE 350 BIRMINGHAM, MI 48009 EXAMINER ACKUN, JACOB K ART UNIT PAPER NUMBER 3736 NOTIFICATION DATE DELIVERY MODE 03/18/2021 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): cgolaw@yahoo.com ptodocket@cgolaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte RYAN C. MEERS __________ Appeal 2020-004345 Application 14/959,432 Technology Center 3700 __________ Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and ANNETTE R. REIMERS, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1 and 4–21, which constitute all the claims pending in this application. See Final Act. 1. Claims 2 and 3 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 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 Rehrig Pacific Company. See Appeal Br. 1. Appeal 2020-004345 Application 14/959,432 2 STATEMENT OF THE CASE The claims are directed to a beverage crate. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A beverage crate comprising: a base; end walls at ends of the base; side walls at sides of the base, the side walls each including a plurality of side columns extending upward from a lower portion of the side wall;[2] and corner columns at corners of the crate, wherein the corner columns are more than twice as tall as the side columns. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Andersson US 4,911,303 Mar. 27, 1990 Stahl (“Stahl ’326”) US 5,035,326 July 30, 1991 Apps US 5,855,277 Jan. 5, 1999 McCanless US 9,010,536 B2 Apr. 21, 2015 Koefelda US 2005/0067314 A1 Mar. 31, 2005 Stahl (“Stahl ’276”) US 2007/0187276 A1 Aug. 16, 2007 Orgeldinger US 2013/0213855 A1 Aug. 22, 2013 REJECTIONS Claims 15–21 are rejected under 35 U.S.C. § 112(b) as being indefinite. Final Act. 2. 2 The Appendix of Claims shows the last semicolon in claim 1 being underlined. See Appeal Br. 10. We understand this underlining as a typographical error. Appeal 2020-004345 Application 14/959,432 3 Claims 1 and 4–21 are rejected under 35 U.S.C. § 103 as being unpatentable over (McCanless or Apps) and (Orgeldinger, Stahl ’276, Stahl ’326, or Andersson). Final Act. 5. Claims 1 and 4–21 are rejected under 35 U.S.C. § 103 as being unpatentable over Koefelda and (Orgeldinger, Stahl ’276, Stahl ’326, or Andersson). Final Act. 9. OPINION Indefiniteness Claims 15 and 16: Claim 15 recites “[t]he beverage crate of claim 5 wherein the beverage crate is configured such that the identical crate nested when thereon would have a base the bottom surface of which would be higher than the plurality of side columns of the beverage crate.” Appeal Br. 12 (Claims App.; emphasis added). Claim 16 recites “[t]he beverage crate of claim 5 wherein the beverage crate is configured such that the identical crate when nested thereon would have a base the bottom surface of which would be approximately coplanar with uppermost edges of the plurality of side columns of the beverage crate.” Id. (emphasis added). Claim 5 depends from claim 4, which depends from independent claim 1. Id. at 10. The Examiner determines that “[t]he claims are indefinite because they are drafted so that it is not clear whether they claim the sub- combination of a beverage crate only or whether they claim the combination of two identical beverage crates.” Final Act. 2–3. According to the Examiner, “[t]he combination is suggested because in order to meet claim 15 structurally there must be an identical beverage crate nested on the beverage Appeal 2020-004345 Application 14/959,432 4 crate of claim 5,” (id. at 3) and the claim language “‘is configured such that’, ‘when thereon’ and ‘would be’ do[] not change the fact that the second crate is required to give effect to claim 15 since the structural elements of claim 15 depend on something (the other crate) that is ostensibly not claimed” (id. at 4). See also Ans. 8–11. Appellant contests the Examiner’s determination of indefiniteness and argues that these claims “recite[] only a single beverage crate with certain capabilities, not two crates.” Appeal Br. 3–4. We agree. We first note that claim 15 appears to contain a typographical error by reciting “nested when thereon” and should recite instead, “when nested thereon,” which is recited in claim 16. Further, for both claims, the recitation “the identical crate” lacks antecedent basis, and should recite instead “an identical crate.” Nonetheless, we agree with Appellant that a single beverage crate is claimed, rather than two beverage crates. It is true that an identical beverage crate would be used to analyze whether a beverage crate meets the limitation of claim 15. That is, an identical beverage crate is used to determine whether the claimed beverage crate, when nested therewith, has some structural feature to make the identical beverage crate have a bottom surface of its base to be “higher than the plurality of side columns of the beverage crate.” This does not mean that Appellant is attempting to claim two beverage crates. The same applies for claim 16. Consequently, we do not agree with the Examiner that the claimed subject matter here is a combination of two identical beverage crates. Accordingly, we reverse the Examiner’s rejection of claims 15 and 16 under 35 U.S.C. § 112(b), as being indefinite. Appeal 2020-004345 Application 14/959,432 5 Claims 17–21: Claims 17–21 either directly or indirectly depend from claim 16. Appeal Br. 12 (Claims App.). The Examiner additionally determines that these claims are indefinite because “it is not clear which of the two crates the features in claims 17–21 refer to.” Final Act. 4. We disagree. Any features added to the claimed beverage crate would also be required of the recited identical beverage crate in order to continue to satisfy the “identical” language of the parent claim. Consequently, the features recited in claims 17–21 are for both the beverage crate and the identical beverage crate. We thus do not agree with the Examiner that it is not clear in claims 17–21 which of the two crates the claimed subject matter is directed to. Accordingly, we reverse the Examiner’s rejection of claims 17–21 under 35 U.S.C. § 112(b), as being indefinite. Obviousness over (McCanless or Apps) and (Orgeldinger, Stahl ’276, Stahl ’326, or Anderson) Claims 1, 4, 5, 7–11, and 15–21: Claim 1 is representative of claims 1, 4, 5, 7–11, and 15–21 pursuant to 37 C.F.R. § 41.37(c)(1)(iv)(2019). See Appeal Br. 2–4. Independent claim 1 requires, among other limitations, “the corner columns are more than twice as tall as the side columns.” Appeal Br. 10 (Claims App.). “First, Appellant objects to the multiplicity of the rejections” because “[t]here are eight combinations of rejections apparently being made here.” Appeal Br. 4–5; see also Reply Br. 3. Appeal 2020-004345 Application 14/959,432 6 This argument is unavailing because Appellant does not cite to any authority––and we are also unaware of––which prohibits the Examiner from making a “multiplicity of the rejections.” Although cumulative rejections are not encouraged (MPEP 1207.01), they are not prohibited. Further, we do not find the Examiner’s multiplicity of rejections arise to the level of being “[un]developed” as Appellant argues. Appeal Br. 5. Next, Appellant points out that “McCanless and Apps both disclose ‘low-depth’ beverage crates” whereas, “Orgeldinger and Andersson are not low-depth crates.” Appeal Br. 5. Appellant then contends that “Orgeldinger and Andersson . . . also do not disclose nestable columns” and “one of skill in the art designing a low-depth crate would not look to full-depth crates, like Orgeldinger and Andersson.” Id. at 6. These arguments are unpersuasive because they do not address the rejection. First, we note that although independent claim 12 requires nestable columns, independent claim 1 does not. See Appeal Br. 10–11 (Claims App.). We also note that none of the claims requires a full depth crate nor precludes a low depth crate. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“[A]ppellant’s arguments fail from the outset because . . . they are not based on limitations appearing in the claims.”). Second, the Examiner relies on McCanless or Apps, rather than Orgeldinger and Andersson, for disclosing nestable columns. Final Act. 5–6 (finding that “[e]ither base reference discloses most of the elements of the claims” and “[e]ither base reference is missing the feature in claim 1 of the corner columns being more than twice as tall as the side columns”); see also McCanless Fig. 11, Apps Fig. 15 showing nestable columns. Third, Appellant does not identify any meaningful functional or structural differences such that one of skill in the Appeal 2020-004345 Application 14/959,432 7 art designing a low-depth crate would not consider relevant full-depth crates, as argued. Appellant contends that “[t]he two Stahl references are both bakery trays” and “baked goods in bakery trays cannot bear the weight of the bakery trays stacked thereon.” Appeal Br. 6; see also Reply Br. 4. This argument is likewise unavailing for not addressing the rejection. The Examiner states that “Orgeldinger is cited to show that it is conventional to provide at least one side wall of a four wall bottle case to be very short compared to at least one of the other walls of the case and corner structure of the case” “for the sake of increased visibility for the case contents when the cases are stacked with contents therein.” Final Act. 6. “Both Stahl references and Andersson are cited to show similar features to those for which Orgeldinger is applied.” Id. at 7. In other words, the Examiner relies on neither Stahl ’326 nor Stahl ’276 for disclosing nestable columns, i.e., stacking one tray on top of another. Here, the Examiner reasons that it would have been obvious to provide a short side wall for increased visibility of the contents within the crates, which Appellant does not address. In the Reply Brief, Appellant argues that “[t]he reason for having a short wall in a full depth crate does not make any sense in a low depth crate because although “[b]ottles can be easily removed through the front wall [of a full depth crate] both because [the bottles are] shorter and because there is no weight from the upper crates bearing on the bottles.” Reply Br. 3. However “[t]his would not work in a low-depth crate because the weight of the upper crate is supported by the bottles in the lower crate, so the bottles in the lower crate cannot be removed anyway.” Id. Appeal 2020-004345 Application 14/959,432 8 Appellant focuses only on the accessibility of the contents of the crates when the crates are stacked and provided with particularly sized items. Even if it is true that the Examiner’s proposed modification does not improve accessibility when used with certain items, the Examiner provides another reason for the modification––improved visibility of the contents of the crates. See Final Act. 6. Orgeldinger discloses that in the direction of the opening, the side walls adjacent to the opening are lower, so that on the one hand the space available for retrieval is increased and so that on the other hand the light incidence or viewing angle into the interior of the box is increased in order to thus make the objects transported in the box, like for example bottles or the like better visible. Orgeldinger ¶ 17 (emphasis added). Stahl ’326 and Andersson also appear to disclose the benefit of improved visibility by stating that “multi-level baskets or containers that are used to transport the baked products can also be used to display them in grocery stores” (Stahl ’326 ¶ 7) and “[i]n a stack of crates with H-profile, where the crates contain different kinds of beverages, these can be visualized, thanks to the recesses in the crates” (Andersson 2:10–13). In this respect, Appellant’s contention again does not address the rejection. For these reasons, the rejection of claims 1, 4, 5, 7–11, and 15–21 as being unpatentable over (McCanless or Apps) and (Orgeldinger, Stahl ’276, Stahl ’326, or Andersson) is sustained. Appeal 2020-004345 Application 14/959,432 9 Claims 6 and 12–14: Appellant argues claims 6, 12, and 13 together. Appeal Br. 7–8. We note that claim 14 depends from independent claim 12.3 Appellant points out that “[c]laims 6 and 12 recite in part, ‘the lower portion of the side wall is approximately twice as tall as the side columns on the lower portion of the side wall’” and argues that “[t]his is not disclosed by the reference.” Appeal Br. 7–8. Appellant argues that “[t]he Examiner states that this [claimed subject matter] is just a matter of design choice” and intimates that it is not simply a matter of design choice. Id. at 8; see also Reply Br. 4. As to the first argument, Appellant does not address the rejection because the Examiner does not find that this claimed subject matter is disclosed by the cited reference. Rather, the Examiner concludes that it would have been obvious to modify the crate base reference(s) to have this subject matter. Final Act. 8. As to the second argument, the Examiner correctly responds that in the Final Office Action, the rationale for modifying the base reference(s) to have this limitation is also “for the same reasons” as previous discussed. Ans. 14–15. That is, one of the reasons for the proposed modification is “to provide even more visibility of the case contents.” Final Act. 8. We note Appellant’s response that “this unusual proportion of the lower portion vs[.] the side columns secures the bases of 3 We note that independent claim 12 recites a similar limitation noted above for claim 1, i.e., “the corner columns are more than twice as tall as the side columns.” Appeal Br. 11 (Claims App.). To the extent that Appellant is incorporating arguments made for claim 1, they are equally unpersuasive for the reasons discussed above. Appeal 2020-004345 Application 14/959,432 10 the outer bottles in the crate, while trading some support higher on the bottles from the side columns in favor of visibility and removability” indicates that the claimed subject matter at issue would be a matter of obvious design choice based on the intended use of the crates. In other words, skilled artisans would understand how to choose between tradeoffs in one feature (security or stability) for another feature (visibility or removability). Consequently, Appellant’s contentions do not apprise us of Examiner error. Claim 13 recites “the corner columns are approximately three times as tall as the side columns.” Appeal Br. 11 (Claims App.). Appellant argues that concerning this claimed subject matter, “the crate provides significant higher support to the bottles at each end compared to the sides” and “[t]his has been found to be sufficient, even when other loaded crates are stacked on the bottles in the crate.” Id. at 8. As similarly discussed above for claims 6 and 12, Appellant does not explain why it would not have been obvious to modify the crate of the base reference(s) to have this claimed subject matter for the reason of “provid[ing] even more visibility of the case contents.” Final Act. 8. Further, Appellant does not provide any persuasive argument or evidence to show that there is criticality in making the corner columns approximately three times as tall as the side columns, rather than twice as tall, to rebut the Examiner’s reason for modification––“as a matter of obvious choice in design.” See Final Act. 8. The degree of viewability of the contents of the crate depends on the product held within the crate and end use. Appeal 2020-004345 Application 14/959,432 11 Consequently, the rejection of claims 6 and 12–14 as being unpatentable over (McCanless or Apps) and (Orgeldinger, Stahl ’276, Stahl ’326, or Andersson) is sustained. Obviousness over Koefelda and (Orgeldinger, Stahl ’276, Stahl ’326, or Anderson) Appellant argues claims 1 and 4–21 together. Appeal Br. 8–9. We select claim 1 as the representative claim. Appellant contends that “Koefelda also discloses a low-depth beverage crate.” Appeal Br. 8 (citing Koefelda ¶ 3). Appellant argues, “[f]or the same reasons stated above regarding the inapplicability of full depth crate designs and bakery tray designs to low-depth beverage crate designs, the claims are patentable over Koefelda in view of Orgeldinger, Stahl ’276, Stahl ’326, or Andersson. Id. at 9; see also Reply Br. 5. Appellant contentions are unpersuasive for the following reasons. First, paragraph 3 of Koefelda does not discuss “full depth crates.” Koefelda ¶ 3. And even if it does, paragraph 3 relates to the background art of its disclosure. Second, to the extent Appellant is incorporating the argument discussed above in connection to the rejection citing McCanless and Apps, i.e., that the Examiner’s proposed modification “does not make sense” (see Reply Br. 3) because Koefelda requires the loading to bear upon the bottles rather than on the lower crate when the crates are nested or stacked, this argument is not well-taken. Figure 9 of Koefelda shows an upper crate nested with a lower crate. See Koefelda Fig. 9. Thus, in the event contents of relatively low height are placed between the nested crates, such contents would not bear the weight of the upper crate, thereby obviating the asserted need for Koefelda’s contents to bear the load. Further, as with Appellant’s Appeal 2020-004345 Application 14/959,432 12 previous argument, focusing on accessibility of the contents of the crates when the crates are stacked, rather than the Examiner’s alternate proffered reason for the modification, does not address the benefit of improved visibility of the contents of the crates. See Final Act. 10. In sum, Appellant does not apprise us of Examiner error. Accordingly, the rejection of claims 1 and 4–21 as being unpatentable over Koefelda and (Orgeldinger, Stahl ’276, Stahl ’326, or Andersson) is sustained. CONCLUSION The Examiner’s rejection of claims 15–21 under 35 U.S.C. § 112(b), as being indefinite, is reversed. The Examiner’s rejections of claims 1 and 4–21 under 35 U.S.C. § 103(a), are affirmed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 15–21 112(b) Indefiniteness 15–21 1, 4–21 103(a) (McCanless or Apps), (Orgeldinger, Stahl ’276, Stahl ’326, or Andersson) 1, 4–21 1, 4–21 103(a) Koefelda, (Orgeldinger, Stahl ’276, Stahl ’326, or Andersson) 1, 4–21 Overall Outcome 1, 4–21 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). Appeal 2020-004345 Application 14/959,432 13 AFFIRMED