Ex Parte 8316622 et al

Patent Trial and Appeal Board

Sep 18, 2018

90013248 (P.T.A.B. Sep. 18, 2018)

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.
90/013,248 06/05/2014 8316622 331489.000 6654
94264 7590 09/18/2018
THE LAW FIRM OF
ANDREA HENCE EVANS, LLC
14625 BALTIMORE AVE
#853
LAUREL, MD 20707
EXAMINER
CLARKE, SARA SACHIE
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
09/18/2018 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte VISHNU JAJOO and ANURANG SOMANI1
Appellant, Patent Owner
____________________

Appeal 2018-005071
Reexamination Control 90/013,248
Patent No. US 8,316,622 B22
Technology Center 3900
____________________

Before MARC S. HOFF, DANIEL S. SONG, and
BRETT C. MARTIN Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON APPEAL

1 Shriji Polymers India Limited. is the real party in interest (Appeal Brief
(hereinafter “App. Br.”) 2).
2 Issued November 27, 2012 (hereinafter “the ’622 patent”).
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Claims 1–8 are subject to reexamination and stand rejected. The
Patent Owner appeals under 35 U.S.C. §§ 134(b) and 306 from a Final
Rejection of these claims (App. Br. 7). We have jurisdiction under 35
U.S.C. §§ 134(b) and 306. An oral hearing was held on September 5, 2018,
a transcript of which will be entered into the record in due course.
In addition to the Appeal Brief, the Patent Owner also relies on a
declaration of Mr. Hermann Plank in support of its appeal. Because this
evidence is referred to in the briefs and Answer, we generally cite to the
portions of the briefs and Answer where the evidence is discussed, but also
discuss specific portions of the declaration as appropriate.
The invention is directed to a child-resistant cap. Representative
independent 1 reads as follows (App. Br. 17, Claims App’x):
1. A cap assembly comprising:
an outer cap having hinges extending from a bottom surface of
the outer cap to a top of an inner cap, wherein the hinges are vertical
inclined projections angled between 45° to 60° from the bottom
surface of the outer cap which form an arc-like shape around the
bottom surface of the outer cap positioned every 90 degrees;
wherein the hinges provide a distance D1 between the outer cap
and inner cap in a resting position;
inner cap teeth extending in a vertical direction along an outer
periphery of the inner cap;
outer cap teeth extending in a vertical direction along an inside
of the outer cap inner periphery wall;
wherein a ratio of the inner cap teeth to outer cap teeth is 2:1;
wherein the inner cap teeth and outer cap teeth have angled
edges;
wherein the distance D1 is about 3 mm between the bottom
surface of the outer cap and the top surface of the inner cap and the
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distance D1 is reduced to distance D2 which is about 1 mm when a
pressure is exerted on the cap assembly compressing all of the hinges
in an engagement position which engage the inner cap teeth and outer
cap teeth.

Independent claim 6 is similar, but recites that the inner cap has “at
least one undercut along an inside rim of the inner cap.” (Id. at 18).

REJECTIONS
The Examiner rejects various claims under 35 U.S.C. § 103(a) as
follows:
1. Claims 1–3 as unpatentable over Swartzbaugh (US 3,795,338,
iss. Mar. 5, 1974) in view of Buono (US 5,370,251, iss. Dec. 6, 1994
(hereinafter “Buono I”)), and Finke (US 4,520,938, iss. June 4, 1995).
2. Claims 4 and 5 as unpatentable over Swartzbaugh, Buono I,
Finke, and King (US 5,411,157, iss. May 2, 1995).
3. Claims 6–8 as unpatentable over Swartzbaugh, Buono I, Finke,
and Buono (US 5,005,718, iss. Apr. 9, 1991 (hereinafter (“Buono II”)).
We AFFIRM.

ANALYSIS
We note that only those arguments timely made in the briefs of record
in this appeal have been considered. Other arguments not made or those not
properly presented to the Board have not been considered and are deemed to
be waived. See 37 C.F.R. § 41.37 (c)(1)(iv); In re Jung, 637 F.3d 1356,
1365–66 (Fed. Cir. 2011); Ex parte Frye, 94 USPQ2d 1072, 1075–76 (BPAI
2010 (precedential)).
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Rejection 1
The Examiner rejects claims 1–3 as obvious over Swartzbaugh in
view of Buono I, and Finke (Final Act. 5). The Examiner finds Swartzbaugh
discloses the invention substantially as claimed, but concedes that:
Swartzbaugh does not disclose (a) a ratio of the inner cap teeth
to outer cap teeth is 2:1; (b) the inner cap teeth and outer cap teeth
have angled edges; and (c) the distance D1 between the bottom
surface of the outer cap and the top surface of the inner cap is about 3
mm in a resting position and the distance D1 is reduced to distance D2
which is about 1 mm when a pressure is exerted on the cap assembly
compressing all of the hinges in an engagement position which engage
the inner cap teeth and outer cap teeth.
(Final Act. 6).
The Examiner finds that “Buono I discloses that the ratio of teeth on
the inner and outer caps is 2:1.” (Final Act. 6). The Examiner concludes
that it would have been obvious to a person of ordinary skill in the art to
have arranged the teeth of Swartzbaugh to have the recited 2:1 ratio as it is
merely substitutes “the tooth ratio taught in Buono I for the tooth ratio in
Swartzbaugh,” to yield a predictable in which “the teeth on the inner and
outer caps will continue to serve the function of engaging when a sufficient
downward force is applied to the outer cap” so as to allow the closure to be
opened or closed (Final Act. 6).
The Examiner also finds that Finke disclose teeth on the inner and
outer caps having angled edges (Final Act. 6). Accordingly, the Examiner
concludes that “incorporating teeth having angled edges on the inner and
outer caps” would have been obvious to one of ordinary skill in the art, and
that substitution yields a predictable result in which such “teeth on the inner
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and outer caps will continue to serve the function of engaging when a
sufficient downward force is applied to the outer cap.” (Final Act. 6–7).
As to the recited 3 mm and 1 mm distances, the Examiner concludes
that:
because the inventor has not attributed any new or unexpected results
to the specific spacing dimensions, it would have been obvious to
modify the inner and outer caps of Swartzbaugh such that in their
relative resting and engagement positions they are spaced from each
other by about 3 mm and 1 mm, respectively. Moreover, since
Swartzbaugh teaches the same purpose for the spacing as the claimed
invention (i.e., preventing engagement of the teeth unless pressure is
applied . . .), the results of the modification would have been
predictable.
(Final Act. 7–8).

Swartzbaugh’s Lugs
As to the provision of lugs in the cap of Swartzbaugh, the Examiner
correctly explains that:
Swartzbaugh teaches two different types of engagement . . . . The
first involves the use of hinges (leaf spring members 18–21) engaging
ratchet lugs 34–37 for closing/fastening/tightening of the cap
assembly to a container. See Swartzbaugh, col. 4, ll. 6–17. The
second involves the inter-engagement of teeth (splines 22, 32) of the
two cap members for removing the cap assembly from the container.
See col. 4, ll. 42–66, as quoted at p. 5 above. Additionally,
Swartzbaugh’s hinges (leaf springs 18–21) provide two different
functions: (a) ratcheting when closing/fastening/tightening the cap
assembly (Swartzbaugh, col. 6–17), and (b) biasing the outer and
inner cap members 10 and 12 away from one another so that the
splines 22, 32 do not engage each other unless the bias is overcome
(abstract and col. 4, ll. 42–56).
(Ans. 10).
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The Patent Owner argues that Swartzbaugh “requires the presence of
so-called ‘lugs’ (elements 34, 35, 36, and 37; Figs. 2, 4–7) on the top of the
inner closure in order to enable fastening/tightening of the cap assembly.”
(App. Br. 8). In that regard, the declarant asserts that the “process” of
opening the invention of the ’622 patent, which does not require lugs, differs
from the process of Swartzbaugh (Decl. Plank 7). Accordingly, the Patent
Owner argues that:
since Swartzbaugh discloses that the “lugs” are critically necessary to
enable a functional use of the disclosed cap assembly, the reference
cannot reasonably be viewed as disclosing or suggesting a cap
assembly that embodies other means for closing/fastening/tightening
the cap assembly onto a container.
(App. Br. 9).
The Patent Owner also argues that elimination of lugs in Swartzbaugh
would not have been obvious to one of ordinary skill in the art (App. Br. 11),
and that Swartzbaugh’s cap assembly “requires the ‘lugs’ to achieve
closing/tightening indicates that the teeth and their locations on the outer and
inner caps are incapable, on their own, of performing the function of
tightening of the assembly.” (App. Br. 9). The Patent Owner further argues
that “‘lugs’ as taught by Swartzbaugh would interfere with the operations of
the claimed compressible hinges” (App. Br. 10), and Swartzbaugh’s lugs
“are not angled as claimed nor are they compressible when pressure is
placed onto the cap assembly.” (App. Br. 11, citing Decl. Plank, pg. 7–8).
We are not persuaded by the Patent Owner’s arguments. Initially, the
Patent Owner’s argument based on elimination of lugs in the cap of
Swartzbaugh and that its teeth are incapable of tightening the cap assembly
on their own are misdirected because as the Examiner explains, “there is no
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suggestion in the rejection to modify Swartzbaugh’s cap assembly such that
it does not include said lugs.” (Ans. 10).3 In addition, the Patent Owner’s
argument that provision of lugs would interfere with the claimed
compressible hinges is also misdirected in that the Examiner is not
proposing modifying the claimed invention to include lugs. Rather, the
rejection is based on the fact that Swartzbaugh discloses a cap having teeth
(splines) that engage when pressure is exerted on the cap assembly as recited
in claim 1. Additionally, the fact that the lugs of Swartzbaugh are not
angled or compressible is misdirected and immaterial because the rejection
relies on “inclined leaf spring members [18–21]” of Swartzbaugh, which are
angled and compressible as claimed (see Swartzbaugh, col. 4, ll. 42–66), not
on any lugs.
As to the Patent Owner’s arguments based on the fact that the cap of
Swartzbaugh includes lugs, such arguments are unpersuasive because they
are not based on limitations of the claims. In re Self, 671 F.2d 1344, 1348
(CCPA 1982) (“Many of appellant’s arguments fail from the outset because,
. . . they are not based on limitations appearing in the claims . . . .”). In that
regard, we agree with the Examiner that while the Patent Owner’s arguments
imply that claim 1 requires the engagement of teeth to perform the function

3 It is also unclear from a technical standpoint why the engaged teeth of
Swartzbaugh would be incapable of tightening the cap, considering the teeth
can still be engaged by applying pressure so as to allow rotation of the cap to
engage the bottle. As noted, the engaged teeth of Swartzbaugh are utilized
to loosen the cap.
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of tightening, “there is no such requirement,” claim 1 merely requiring
“engagement of the teeth of the inner and outer caps.” (Ans. 8–11).4
The Examiner is also correct that claim 1 “do[es] not preclude the
presence of ratchet lugs in the cap assembl[y]” (Ans. 10–11), considering
that it utilizes the open-ended transitional term “comprising,” which allows
for additional, unrecited elements. See Genentech, Inc. v. Chiron Corp., 112
F.3d 495, 501 (Fed. Cir. 2005). The fact that the preferred embodiment
disclosed in the Specification of the ’622 patent does not need lugs that
allow ratcheting is immaterial to the fact that Swartzbaugh includes teeth
that engage upon exerting pressure on the cap assembly as recited by claim
1.
Accordingly, we agree with the Examiner’s conclusion that:
Since (a) the teeth (splines 22 and 32) [of Swartzbaugh] inter-engage
with the spaces between each other when the outer cap 10 is pressed
towards the inner cap 12 and (b) the outer and inner caps may be
rotated as a unit when said teeth are so inter-engaged, Swartzbaugh
meets the limitation.
(Ans. 9).

4 We also note that during the Oral Hearing, inventor Mr. Somani
represented that in the disclosed invention, the teeth are always engaged and
that the cap assembly only needs to be pressed to open the cap assembly.
However, this representation is not entirely consistent with the disclosure in
the Specification of the ’622 patent that “[t]he assembly 800 is to be pushed
and rotated simultaneously to engage or disengage the assembly 800 from
the bottle 810” (col. 3, ll. 12–14), and that “[s]crewing and unscrewing the
cap assembly 800 requires concurrent motion such as turning the cap
assembly 800 and pushing downward thereby engaging the inner cap teeth
225 and outer cap teeth 120.” (Col. 3, ll. 28–31; see also Fig. 3 (showing the
teeth disengaged)).
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Angled Teeth
The Patent Owner argues that “the angled teeth of [the ’622 patent]
provide controlled engagement of the teeth while Swartzbaugh closed end
teeth have limited engagement after the ratchet mechanism is activated.
[The ’622 patent] does not need this ratchet mechanism. (See Expert
Opinion, Page 6).” (App. Br. 10; see also Decl. Plank, pg. 6).
These arguments are unpersuasive. Firstly, as the Examiner points
out, the term “controlled engagement” is not recited in claim 1 or even used
in the Specification (Ans. 11). In addition, the Patent Owner does not direct
our attention to, nor is it apparent, where in the Specification there is “any
disclosure of an engagement that might be considered to be a ‘controlled
engagement.’” (Ans. 11). Furthermore, the Examiner is correct that claim 1
“do[es] not preclude the type of engagement taught by Swartzbaugh” (Ans.
11), but instead, merely recites engagement of the teeth upon compression of
the hinges to an engagement position. Moreover, based on the arguments of
the Patent Owner and the declarant, the referred to “controlled engagement”
appears to stem from provision of the recited “angled edges” on the teeth,
but the Examiner relies on Finke for disclosing this feature, not
Swartzbaugh. Accordingly, arguments of the Patent Owner based on
Swartzbaugh individually are unpersuasive because the rejection is based on
the collective teachings of the applied prior art. In re Merck, 800 F.2d 1091,
1097 (Fed. Cir. 1986) (Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references).
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With respect to the combination of Swartzbaugh and Finke, the
declarant further states that:
If there would be any angle on top of the splines there not only would
be limited interaction, but also a fairly small surface area, where the
splines of the inner and outer member actually touch. This lack of
surface area would in my opinion translate into a lack of engagement
between the splines from the inner and outer member and while a
rotating motion is attempted it would cause overflexing and
destroying of the ratchet mechanism.
(Decl. Plank, pgs. 6–7).
However, the basis of these assertions, as best can be understood, are
unpersuasive because the length of the teeth in Swartzbaugh is not being
altered, but instead, the profile of the distal tips of the teeth are being
modified to be angled as disclosed in Finke. To any extent that provision of
such an angled profile may slightly diminish the contact surface area
between the engaged splines, appropriate dimensioning of the teeth and their
engagement to provide a desired amount of contact surface area would have
been obvious and within the skill of those in the art. Moreover, the assertion
of potential “overflexing” of the ratchet mechanism is speculative, the
declarant stating that overflexing may occur “[i]f the height H of the leaf
springs is smaller or equal to the height of the angled teeth H1,” and that its
presented “third scenario is hypothetical.” (Decl. Plank, pg. 6). These
assertions also appear to be fundamentally premised on some unexplained
dimensioning of the teeth and the leaf springs, but again, appropriate sizing
would have been obvious and within the skill of those in the art.

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Arc-like Shape
The Patent Owner also argues that “Swartzbaugh does not teach or
suggest that the hinges form an arc-like sharound [sic, shape] around the
bottom surface of the otuer [sic, outer] cap positioned every 90 degrees.”
(App. Br. 13). This argument is unpersuasive and we agree with the
Examiner (Ans. 14) that Figure 3 of Swartzbaugh discloses this limitation.
It is well established that drawings can be relied upon for what they
reasonably disclose and suggest to one of ordinary skill in the art. See In re
Aslanian, 590 F.2d 911, 914 (CCPA 1979); In re Mraz, 455 F.2d 1069, 1072
(CCPA 1972).

45 Degrees
With respect to the angling of the hinges, the Patent Owner argues
that “about 45 degrees” disclosed in Swartzbaugh “could arguably be close
to the Patentee’s claim of about 45 to 60 degrees, the Examiner can[]not
state that ‘about 45 degrees’ overlaps within the claimed range.” (App. Br.
13). The Patent Owner also argues that “the Examiner has not justified why
it would be obvious to one of ordinary skill in the art to angle hinges
between 45° to 60° from the bottom surface of the outer cap, as claimed.”
(App. Br. 13).
These arguments are unpersuasive. Claim 1 recites that “the hinges
are vertical inclined projections angled between 45° to 60° from the bottom
surface of the outer cap.” (App. Br. 17, Claims App’x). Swartzbaugh
discloses that its leaf spring members 18–21 “are inclined at an angle of
about 45º,” which is within in the claimed range of “about 45 to 60 degrees,”
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thereby satisfying the limitation at issue. To any extent that there is any
significance in the fact that claim 1 recites a range for the angle instead of a
singular value, the Examiner is also correct that “Swartzbaugh’s teaching of
‘about 45°’ allows for angles slightly above or below 45°. Thus,
Swartzbaugh’s teaching of ‘about 45°’ clearly overlaps the claimed range of
‘between 45° to 60°.’” (Ans. 15). Accordingly, the Examiner has set forth a
proper prima facie case of obviousness. In re Peterson, 315 F.3d 1325, 1329
(Fed. Cir. 2003) (“In cases involving overlapping ranges, we and our
predecessor court have consistently held that even a slight overlap in range
establishes a prima facie case of obviousness.”).

Distances
The Patent Owner argues that the prior does not teach or suggest D1
of about 3 mm or D2 of about 1 mm, and the declarant states that distances
are critical (App. Br. 13–14, citing Decl. Plank, pg. 8). While the prior art
does not teach the recited distances, we disagree with the Patent Owner that
such distances would not have been obvious. Swartzbaugh clearly discloses
constructing its cap assembly so that in order to open the container, the outer
member must be pressed downwardly to overcome the bias of the leaf
springs and to engage the splines formed on both the inner and outer
members of the cap (Swartzbaugh, col. 4, ll. 42–55; see also col. 2, ll. 1–7;
Figs. 5, 6). As such, Swartzbaugh discloses an initial distance between the
outer cap and inner cap in a resting position as shown in Figure 5, and a
reduced distance when the teeth are engaged as shown in Figure 6. The
recited distances of 3 mm and 1 mm appear to be result effective variables
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based on the chosen size/dimensions of the various components of the cap
assembly such as the length of teeth engagement and displacement of the
leaf springs, selection of these parameters being within the skill of the
artisan. See In re Boesch, 617 F.2d 272, 276 (CCPA 1980); see also In re
Kumar, 418 F.3d 1361, 1366 (Fed. Cir. 2005) (“A prima facie case of
obviousness may be made when the only difference from the prior art is a
difference in the … value of a particular variable.”).
While the declarant states that distances of 3 mm or 1 mm are critical,
we agree with the Examiner that “the issue of criticality of the claimed
invention requires the consideration of whether unexpected results are
achieved . . . . it is unclear how these factors are relevant to whether the
distances D1 and D2 achieve unexpected results.” (Ans. 17). Cf. In re
Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990); In re Huang, 100 F.3d 135,
139 (Fed. Cir. 1996).

Ratio of Teeth
The Patent Owner asserts that “[t]he prior art does not teach or
suggest a ratio of the inner cap teeth to outer cap teeth is 2:1.” (App. Br.
14). This is simply false because as the Examiner finds (Final Act. 6),
Buono I discloses this 2:1 ratio (Buono I, col. 5, ll. 32–34 (“the ratio of
triangular teeth 36 to the drive knurls 46 being 2:1.”)).
The Patent Owner argues that it would not be obvious to modify
Swartzbaugh to have such a ratio because in Swartzbaugh,
the downward displacement of the outer cap members brings the
splines 22 into interengagement with the spaces between the splines
32 to prevent over flexing of the leaf spring members (See
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Swartzbaugh, Column 4, lines 55–61). Thus, creating a 2:1 ratio of
teeth would likely cause the teeth of Swartzbaugh to uncontrollably
engage and cause over flexing of the leaf spring members.
(App. Br. 14).
In the above regard, the Patent Owner relies on Declaration of Plank
that states:
The wider spacing of the lower teeth would offer a larger space for the
upper teeth to fall into and since it is already uncontrolled engagement
in a 1:1 ratio, the Swartzbaugh - Buono combination would make the
situation even worse and in my opinion would cause slipping of the
leaf springs over the lugs as well as overflexing of the leaf springs.
Both cases, overflexing and slipping would destroy in my opinion the
Swartzbaugh intention.”
(Decl. Plank, pg. 7, emphasis added).
Like the Examiner, we understand the Patent Owner’s argument to be
that “if Swartzbaugh used a 2:1 ratio for the cap teeth (taught by Buono),
then Swartzbaugh’s arrangement would NOT prevent over-flexing of the
leaf spring members” (Ans. 18), and result in slipping of the leaf springs.
However, Patent Owner’s arguments and declarant’s statement are
unpersuasive. Firstly, the declarant errs because the ratio suggested in
Buono I results in wider spacing of the upper teeth, not the lower teeth (see
Buono I, Fig. 2). Secondly, as to over-flexing, we agree with the
Examiner’s assessment that:
Swartzbaugh prevents over-flexing by providing the teeth with closed
ends. . . . Regardless of the teeth ratio, Swartzbaugh’s teeth would still
inter-engage under sufficient downward pressure on the outer cap
member 10, and would still contact the closed ends preventing over-
flexing. In other words, the ability of the closed ends to prevent over-
flexing is unaffected by and unrelated to the teeth ratio.
(Ans. 20; see also Ans. 19–20).
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Thirdly, as to the asserted slippage, we fail to see the technical basis
of this argument because as long as the upper teeth (teeth of the outer cap)
are properly positioned to engage the higher numbered lower teeth upon
application of pressure, there would be interlocking of these teeth such that
the outer and inner caps become interlocked and rotate together. The leaf
springs of Swartzbaugh are part of the outer cap. Accordingly, as long as
there is no relative rotation between the inner and outer caps by virtue of the
interlocked teeth/splines, the leaf spring members would not slip.
Accordingly, we agree with the Examiner that “[declarant] Plank’s
conclusion that wider spacing would cause slipping of the leaf springs and
overflexing fails.” (Ans. 19).
For the reasons discussed above, we do not find the Patent Owner’s
arguments persuasive in establishing that the Examiner erred in rejecting
claim 1. Hence, we affirm the Examiner’s rejection of claim 1. The Patent
Owner does not submit any arguments specifically directed toward claims 2
and 3 that ultimately depend from claim 1. Accordingly, we also affirm this
rejection relative to these claims as well.

Rejections 2 and 3
The Examiner rejects claims 4 and 5 as obvious over Swartzbaugh,
Buono I, Finke, and King, and rejects claims 6–8 as unpatentable over
Swartzbaugh, Buono I, Finke, and Buono II (Final Act. 8–9).
The Patent Owner relies on dependency from independent claim 1 for
patentability of these claims (App. Br. 15). Accordingly, Rejections 2 and 3
of claims 4–8 are also affirmed.
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CONCLUSION
Rejections 1–3 of claim 1–8 are affirmed.
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED