Ex Parte Littlejohn et al

Patent Trial and Appeal Board

Jul 1, 2016

11778232 (P.T.A.B. Jul. 1, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111778,232 07/16/2007
31743 7590 07/05/2016
Georgia-Pacific LLC
133 Peachtree Street NE - GA030-42
ATLANTA, GA 30303
FIRST NAMED INVENTOR
Mark B. Littlejohn
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
12544-USA 1057
EXAMINER
DEMEREE, CHRISTOPHER R
ART UNIT PAPER NUMBER
3782
MAILDATE DELIVERY MODE
07/05/2016 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 MARK B. LITTLEJOHN, MICHAEL A. BREINING, and
LARRY A. MEJEUR
Appeal2014-005972
Application 11/778,232
Technology Center 3700
Before WILLIAM A. CAPP, GEORGE R. HOSKINS, and
LEE. L. STEPINA, Administrative Patent Judges.
HOSKINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Mark B. Littlejohn et al. ("Appellants") 1 appeal under 35 U.S.C. § 134
from the Examiner's decision rejecting claims 1-8, 20-29, 31, 34, 38, 39,
and 41-51 in this application. There is no rejection of record for claim 35.
See Final Act. 2--4. The Board has jurisdiction over the appeal under 35
U.S.C. § 6(b).
We REVERSE.
1 The Appeal Brief identifies Dixie Consumer Products LLC as the real
party in interest. Appeal Br. 4.
Appeal2014-005972
Application 11/778,232
CLAIMED SUBJECT MATTER
Claims 1, 20, and 29 are independent. Claim 1 illustrates the subject
matter on appeal:
1. A paperboard plate formed from a paperboard blank,
compnsmg:
a) a generally planar bottom portion;
b) an upwardly and outwardly extending fluted
sidewall portion, wherein the sidewall portion comprises a
plurality of flutes arranged substantially around an outer
perimeter of the bottom portion to define a fluted perimeter,
wherein the flutes are present at fewer than about 3.5 flutes per
inch of the fluted perimeter;
c) a radial profile having a single transition of
about 15° to about 50° disposed between the bottom portion and
the sidewall portion;
d) a plate diameter to flute length ratio of greater than
about 6, wherein the plate has a basis weight of greater than
7 5 pounds per ream; and
e) a coating comprising polyethylene disposed on a
top side and bottom side of the paperboard blank and \vherein the
plate comprises the coating on its top side and bottom side.
Appeal Br. 22 (Claims App.).
REJECTIONS ON APPEAL
Claims 1-8, 20-28, and 41--48 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Ingersoll (US 221,564, iss. Nov. 11, 1879) and
Littlejohn' 176 (US 7,048, 176 B2, iss. May 23, 2006), in view of Inagaki
(US 4,679,724, iss. July 14, 1987) or Shetty (US 2004/0052987 Al, pub.
Mar. 18, 2004).
Claims 29, 31, 34, 38, 39, and 49-51 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Ingersoll and Littlejohn' 176, in view of
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Appeal2014-005972
Application 11/778,232
Inagaki or Shetty, and further in view of Toussant (US 6,364,203 B2, iss.
Apr. 2, 2002).
ANALYSIS
A. Obviousness based on Ingersoll and Littlejohn '176
in view of Inagaki or Shetty
In rejecting claim 1, the Examiner finds Ingersoll discloses a
paperboard plate comprising a single transition between a generally planar
bottom portion and a fluted sidewall portion. Final Act. 2 (citing Ingersoll,
Figs. 1-2). The Examiner further finds Ingersoll's plate lacks the specific
dimensions (i.e., fewer than about 3.5 flutes per inch of perimeter, transition
of about 15-50°, and plate diameter to flute length ratio greater than about 6,
hereafter "Claimed Dimensions"), basis weight, and coating recited in
claim 1. Id. The Examiner finds Littlejohn '176 teaches a container with
the claimed basis weight of greater than about 7 5 pounds per ream, and a
transition angle of "less than about 60°." Id. at 2-3 (citing Littlejohn '17 6;
3:2-5, 3:23-27). According to the Examiner, it would have been obvious to
modify Ingersoll's plate to have such a basis weight and transition angle "to
create a sturdy plate." Id. at 3 (citing Littlejohn' 176, 1:56-60).2
The Examiner further determines it would have been obvious to make
the plate of Ingersoll and Littlejohn '17 6 have the Claimed Dimensions,
"since it has been held that discovering an optimum value of a result
effective variable involves only routine skill in the art." Final Act. 3 (citing
2 The Examiner relies on Inagaki and Shetty for the polyethylene coating
recited in claim 1. Final Act. 2-3. We need not review this portion of the
rejection, given our determination that the Examiner errs regarding the
obviousness of the Claimed Dimensions.
3
Appeal2014-005972
Application 11/778,232
Jn re Boesch, 617 F.2d 272 (CCPA 1980)). According to the Examiner, the
Claimed Dimensions are "result effective variables [that] all endeavor to
create a more sturdy plate." Ans. 6 (citing Littlejohn' 176, col. 2).
Therefore, in the Examiner's view, "it would have been obvious to try" the
Claimed Dimensions. Id.
Appellants argue the Examiner errs in determining it would have been
obvious to modify the plate of Ingersoll, in light of Littlejohn '17 6, to have a
single transition of about 15-50°, to create a sturdy plate. Appeal Br. 13-14.
Appellants point out container 10 in Littlejohn '176 has three transitions:
first arcuate section 18, second arcuate section 20, and third arcuate
section 22. Id. at 13; see Littlejohn '176, Fig. lB. Appellants further
contend it was known at the time of the invention that strength was derived
from multiple transitions (as in Littlejohn '17 6), not a single transition (as
claimed). Appeal Br. 14 (citing First Littlejohn Decl. 3 i-fi-f 12-15).
Therefore, in Appellants' view, the Examiner errs in determining a person of
ordinary skill in the art would have been motivated to modify Ingersoll's
single transition to be within the claimed range, in light of Littlejohn '17 6, to
create a sturdy plate. Id.
As to the other Claimed Dimensions, Appellants assert "[a] particular
parameter must first be recognized as a result-effective variable, i.e., a
variable which achieves a recognized result, before the determination of the
optimum or workable ranges of said variable might be characterized as
routine experimentation." Appeal Br. 14--15 (quoting MPEP § 2144.05, and
citing In re Antoine, 559 F .2d 618 (CCP A 1977)). Appellants contend
3 See Declaration of Mr. Mark Littlejohn under 37 C.F.R. § 1.132, executed
on February 24, 2011, and attached to Appeal Brief as Exhibit A.
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Appeal2014-005972
Application 11/778,232
Ingersoll does not recognize the Claimed Dimensions as being result-
effective, given Ingersoll's failure to disclose the Claimed Dimensions. Id.
at 15. Appellants also contend Littlejohn' 176 "discloses more transition
angles provide more strength, which is the exact opposite of the claimed
invention" of a single transition. Id. (citing Littlejohn '176, 5:20-22, 6:55-
62, 8:19-23).
We are persuaded of Examiner error in determining it would have
been obvious to modify Ingersoll's plate to have the Claimed Dimensions, in
light of Littlejohn' 176 and routine optimization. We find no support in
Littlejohn '17 6 for the Examiner's conclusion that having a single transition
of about 15-50° would create a sturdy plate. Littlejohn '17 6 indicates its
plate is "rigid and strong" (Littlejohn '176, 1 :56-57), and further discloses
an initial sidewall transition angle of about 50-80°, preferably about 62.5°
(id. at 3:23-27, 7:41--43, 8: 13-15, Fig. 4). 4 However, we find no disclosure
in Littlejohn ' 176 indicating the initial sidewall transition angle causes the
plate to be sturdy. Indeed, consistent with Appellants' argument that the
plate of Littlejohn '17 6 is sturdy by having multiple transitions,
Littlejohn '176 indicates its plate is "characterized by dimensions about the
flange [16} and downwardly extending lip portion [24] of the rim which
provide rigidity." Littlejohn '176, 6:52---60, 8:19-25 (emphasis added),
Fig. lB.
4 Angle Al in Littlejohn '176 is the most directly analogous to the single
transition angle of claim 1. See Littlejohn '176, Fig. 4 (angle Al),
Appellants' Fig. 13 (angle 232). However, angle Al in Littlejohn' 176 is
taken from the vertical, whereas the claimed transition angle is taken from
the horizontal. Id. Therefore, to convert values for angle Al to the claimed
transition angle, one must subtract the Al value from 90 degrees.
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Appeal2014-005972
Application 11/778,232
The Examiner does not articulate why the initial sidewall transition of
about 50---80° in Littlejohn' 176, absent the further transitions provided by
Littlejohn' 176, would lead to a sturdy plate. Nor does the Examiner
articulate how a disclosure of an initial transition of about 50---80°, even if it
were related to plate sturdiness, would lead a person of ordinary skill to
employ the claimed range of about 15-50° in a single transition. The
Examiner cites column 2 of Littlejohn' 176 in support of determining that
Littlejohn '176 recognized a single sidewall transition as a result-effective
variable endeavoring to create a more sturdy plate. Ans. 6. We can find no
discussion in column 2 of Littlejohn '17 6 relating to sidewall transitions,
much less in relation to providing plate sturdiness.
The remaining Claimed Dimensions are (a) fewer than about
3. 5 flutes per inch of perimeter, and (b) a plate diameter to flute length ratio
of greater than about 6. The Examiner appears to equate the claimed
"flutes" to the "scores" described in Littlejohn' 176, and cites
Littlejohn '17 6 column 2 as recognizing the Claimed Dimensions are result-
effective variables endeavoring to create a more sturdy plate. Ans. 6. The
cited column 2 discloses specific ranges of various dimensions in a
paperboard blank for creating a plate, including the number of scores around
the plate perimeter, the plate diameter, and the length of the scores.
Littlejohn' 176, col. 2. However, the Examiner does not adequately explain
how the disclosure of such dimensions establishes that the Claimed
Dimensions were recognized as being result-effective for a sturdy plate. In
particular, Claimed Dimensions (a) and (b) are both ratios specifying
particular relationships between two variables. The Examiner does not
articulate how Littlejohn' 176 establishes such relationships being result-
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Application 11/778,232
effective, much less how the combination of all three Claimed Dimensions
in claim 1 is result-effective.
Thus, we do not sustain the rejection of independent claim 1 as
unpatentable over Ingersoll and Littlejohn' 176 in view of Inagaki or Shetty.
Independent claim 20 recites the same Claimed Dimensions as claim 1,
except that the diameter is of the central portion rather than the entire plate.
Appeal Br. 23 (Claims App.). Claim 20 stands rejected on substantially the
same rationales as claim 1 in relation to the Claimed Dimensions. Final
Act. 2-3. Accordingly, we likewise do not sustain the rejection of claim 20,
and of claims 2-8, 21-28, and 41--48 which each depend from claim 1 or
claim 20, as unpatentable over Ingersoll and Littlejohn' 176 in view of
Inagaki or Shetty.
B. Obviousness based on Ingersoll and Littlejohn '176
in view of Inagaki or Shetty, and further Toussant
Claims 29, 31, and 49-51
Independent claim 29 recites the same Claimed Dimensions as
claim 1, except that the transition range extends up to 60° rather than ending
at 50°. Appeal Br. 24--25 (Claims App.). In rejecting claim 29, the
Examiner relies on the combination of Ingersoll and Littlejohn '17 6 in
relation to the Claimed Dimensions. Final Act. 4. In particular, the
Examiner relies on Toussant in relation to the claimed sidewall inflection(s),
not the Claimed Dimensions. Id. Accordingly, for the reasons provided
above, we do not sustain the rejection of claim 29, and of claims 31 and
49-51 which each depend from claim 29, as unpatentable over Ingersoll and
Littlejohn' 176 in view of Inagaki or Shetty, and further Toussant.
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Appeal2014-005972
Application 11/778,232
Claims 34, 38, and 39
Claim 34 depends from claim 1, and claim 38 depends from claim 20,
with both dependent claims adding "at least one inflection disposed on" the
sidewall. Appeal Br. 25 (Claims App.). Claim 39 depends from claim 38.
Id. The Examiner relies on Toussant in relation to the claimed sidewall
inflection(s), not the Claimed Dimensions. Final Act. 4. Accordingly, for
the reasons provided above, we do not sustain the rejection of claims 34, 38,
and 39 as unpatentable over Ingersoll and Littlejohn' 176 in view of Inagaki
or Shetty, and further Toussant.
DECISION
The Examiner's decision to reject claims 1-8, 20-29, 31, 34, 38, 39,
and 41-51 is not sustained. As noted above, there is no rejection of record
for claim 3 5.
REVERSED
8