Ex Parte Jouillat

Patent Trial and Appeal Board

Sep 18, 2017

12743294 (P.T.A.B. Sep. 18, 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.
12/743,294 09/20/2010 Jean-Francois Jouillat 0702-101326 2402
28289 7590 09/20/2017
THE WEBB LAW FIRM, P.C.
ONE GATEWAY CENTER
420 FT. DUQUESNE BLVD, SUITE 1200
PITTSBURGH, PA 15222
EXAMINER
PERREAULT, ANDREW D
ART UNIT PAPER NUMBER
3788
NOTIFICATION DATE DELIVERY MODE
09/20/2017 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):
patents @ webblaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEAN-FRANCOIS JOUILLAT
Appeal 2016-006283
Application 12/743,294
Technology Center 3700
Before LYNNE H. BROWNE, JEFFREY A. STEPHENS, and
ERIC C. JESCHKE, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) from the
Examiner’s Final Office Action (“Final Act.”) rejecting claims 1, 3, 6—10,
19, and 21, which are all the claims pending in the application. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 The real party in interest is identified as Impress Group B.V. App. Br. 3.
Appeal 2016-006283
Application 12/743,294
Claimed Subject Matter
Claims 1 and 21 are independent. Claim 1, reproduced below,
illustrates the claimed subject matter.
1. A metal container, comprising a container opening edge
defining an opening, and a membrane comprising at least one
membrane tab, which membrane closes the opening and is
adhered to the opening edge, wherein the tab is at least adhered
to the membrane via temper2 proof means and the tab is used for
releasing the membrane from the opening edge, thereby exposing
the opening,
wherein the temper proof means comprise at least a temper
proof element formed by a weakened part of the tab with the
weakened part being incorporated into the tab and the temper
proof means are activated when the tab is lifted from the
membrane such that the tab is disengaged from the temper proof
means and the temper proof means remains visible on an upper
surface of the membrane, and
wherein the tab is disengaged from the temper proof
means at the weakened part when the tab is lifted prior to using
the tab to release the membrane from the opening edge of the
metal container.
Rejection
Claims 1, 3, 6—10, 19, and 21 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Griese (US 3,274,964, issued Sept. 27, 1966) and
Forman (US 4,679,693, issued July 14, 1987). Final Act. 3^4.
DISCUSSION
Appellant argues Griese and Forman do not teach or suggest that “the
tab is disengaged from the temper proof means at the weakened part when
2 We interpret Appellant’s use of the term “temper proof’ in the claims and
the briefs to mean “tamper proof.”
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Application 12/743,294
the tab is lifted prior to using the tab to release the membrane from the
opening edge of the metal container” as required by claims 1 and 21. App.
Br. 10.3 Appellant contends Griese does not teach tamper proof means “of
any kind,” and that Forman’s pull tab “is in a non-operative state, and
becomes only activated (that is becoming available for finger gripping and
lifting to open the container) after the temper proof means have been
destroyed.” Id. at 11—12.
Figure 5 of Forman is reproduced below.
Figure 5 is a fragmentary view of a container with a label 30 adhered to the
container face, and a tamper evidence tab 32 partially removed. Forman col.
2,11. 44-46. Appellant contends “tamper evidence tab (32), which is not
designed and not suitable for opening the container (10), is provided and is
connected to a tab (34) via a common tab cross piece (46).” App. Br. 12.
“The dry edge (44), in combination with the tab cross piece (46) is tom from
the permanent section (48), so that after removal of the tab dry edge (44) and
the tab cross piece (46), only the tab permanent section (48) remains on the
3 As noted above, we interpret Appellant’s use of the term “temper proof’ in
the claims and the briefs to mean “tamper proof.”
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Appeal 2016-006283
Application 12/743,294
surface and is considered the tamper proof evidence.” Id. at 13. Appellant
argues Forman does not teach activation of the tamper proof means by
lifting the same tab that is used to open the container because Forman’s tab
34, which opens the container, cannot be lifted until after the tamper proof
means is activated by removing tab 32. Id.
The Examiner responds that claim 1 is interpreted to require only that
the tab and tamper proof means be “capable of’ performing the functions
recited in the claims. Ans. 4—5. The Examiner finds that adding Forman’s
features 48/46/44/50 to the membrane 27 of Griese would allow the user to
grasp and remove only the tab, thereby leaving elements 48/46/44 attached
to the membrane where they perform the intended purpose of the device to
provide tamper evidence. Ans. 5. Alternatively, the Examiner also finds
Forman’s tamper proof element and weakened part may be provided without
Forman’s cross piece 46 and dry edge 44, and that omitting these structures
would have been obvious if enhanced gripping of the tab is not desired. See
Ans. 5—6.
Appellant’s arguments do not inform us of error in the Examiner’s
rejection. Although Appellant relies on Forman’s statement that removing
portions 44 and 46 of Forman’s tab 32 leaves tab 34 “free for grasping,”
Reply Br. 5 (quoting Forman col. 4,1. 32), this teaching does not contradict
the Examiner’s finding that a user could pull Forman’s tab 34 without first
removing tab 32. For example, a user could grasp Forman’s tab 34 and pull
it up when tab 32 is only partially removed, as shown in Figure 5 of Forman,
to disengage tab 34 from the tamper proof means and activate the tamper
proof means. Thus, we agree with the Examiner that combining the
teachings of Griese and Forman results in a structure that meets the
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Appeal 2016-006283
Application 12/743,294
limitations of claim 1, including being capable of performing the recited
functions. In addition, Appellant has not addressed the Examiner’s finding,
with which we agree, that one of ordinary skill in the art would have had
reason to incorporate Forman’s tamper proof means without a separate tab.
Ans. 5—6.
Accordingly, for the reasons discussed above, we are not informed of
error in the Examiner’s rejection of claim 1 under 35 U.S.C. § 103(a) as
unpatentable over Griese and Forman. Thus, we sustain the rejection of
claim 1, and, for the same reasons, the rejection of claims 3, 6—10, 19, and
21, argued together with claim 1, App. Br. 10-14. See 37 C.F.R.
§ 41.37(c)(l)(iv).
DECISION
We affirm the Examiner’s rejection of claims 1, 3, 6—10, 19, and 21
under 35 U.S.C. § 103(a) as unpatentable over Griese and Forman.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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