Ex Parte Schuetz

Patent Trial and Appeal Board

Nov 21, 2016

12787458 (P.T.A.B. Nov. 21, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121787,458 05/26/2010
26710 7590 11/23/2016
QUARLES & BRADYLLP
Attn: IP Docket
411 E. WISCONSIN A VENUE
SUITE 2350
MILWAUKEE, WI 53202-4426
FIRST NAMED INVENTOR
Udo Schuetz
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.
129569.00049 4630
EXAMINER
MATHEW, FENN C
ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
11/23/2016 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):
pat-dept@quarles.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte UDO SCHUETZ
Appeal2015-001073
Application 12/787,458
Technology Center 3700
Before JAMES P. CAL VE, WILLIAM A. CAPP, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Udo Schuetz ("Appellant") appeals under 35 U.S.C. § 134(a) from the
Examiner's final decision rejecting claims 1-12. 1 We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellant submits the real party in interest is Schuetz GmbH & Co. KGaA.
Appeal Br. 1.
Appeal2015-001073
Application 12/787,458
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A bung stopper closure for bung-type containers, in
particular for bung-type barrels made of plastic for liquids, said
bung stopper closure comprising:
a cup-shaped bung stopper made of plastic or metal, which
can be screwed into a bung connecting piece of the container,
implemented as a threaded connecting piece, and
a sealing cap made of plastic, which can be snapped onto
the bung stopper, for detection of manipulations, the bung
stopper having a cylindrical outer wall having an external thread,
on whose internal circumference socket engagement eyes for a
socket are situated concentrically to the stopper central axis,
which extend radially and axially in a stopper depression of the
bung stopper, said sealing cap including a central, delimited
elastic clamping sleeve, attached using tear-off webs to an inner
side of the sealing cap disc, which extends axially in a stopper
depression and has an annular detent element on its inner end
protruding radially into the stopper depression for locking with
counter detent elements, which are in the form of ring segments
and protrude radially into the stopper depression, on the lower
section of outwardly curved inner walls, in the form of cylinder
segments, of the socket engagement eyes, an external diameter
of the annular detent element on the clamping sleeve of the
sealing cap being approximately equal to a diameter of the inner
walls of the socket engagement eyes of the bung stopper in such
a manner that when the sealing cap is snapped onto the bung
stopper, which is screwed into a bung connecting piece, the
annular detent element on the inner end of the clamping sleeve
of the sealing cap is guided by the inner walls of the socket
engagement eyes before locking with the counter detent elements
on the inner walls of the socket engagement eyes of the bung
stopper.
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Appeal2015-001073
Application 12/787,458
REJECTIONS
1) Claims 1-3, 5, 7-9, and 11 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Shera (US 1,997,203, iss. Apr. 9, 1935) and
Dwinell (US 6,726,048 B2, iss. Apr. 27, 2004).
2) Claims 4 and 10 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Shera, Dwinell, and Buckley (US 6,968,968 B2,
iss. Nov. 29, 2005).
3) Claims 6 and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Shera, Dwinell, and Baughman (US
2006/0102583 Al, pub. May 18, 2006).
DISCUSSION
Rejection 1
The Examiner finds Shera discloses the limitations of independent
claims 1 and 7 except for a sealing cap made of plastic and the recited socket
engagement eyes. Final Act. 2-3. The Examiner finds that Dwinell
discloses a sealing cap made of plastic, socket engagement eyes "having
outwardly curved inner walls (16) in the form of cylindrical segments with
counter detent elements (undercuts forming groove 17) disposed on a lower
section of said curved inner walls," and "the socket engagement eyes guide
an overseal or sealing cap into secure engagement with the counter detent
elements." Id. at 3. The Examiner reasons it would have been obvious "to
form the sealing cap of Shera with plastic in order to utilize material suitable
for providing a sealing cap with breakaway portions" and "to modify Shera
with the socket engagement eyes of Dwinell to provide suitable counter
detent elements or undercuts capable of engaging an annular detent element
while using less material, thereby reducing production cost." Id. at 4.
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Appeal2015-001073
Application 12/787,458
Appellant contends that neither Shera nor Dwinell discloses the
limitation in claim 1 that
"an external diameter of the annular detent element on the
clamping sleeve of the sealing cap being approximately equal to
a diameter of the inner walls of the socket engagement eyes of
the bung stopper in such a manner that when the sealing cap is
snapped onto the bung stopper, ... , the annular detent element
on the inner end of the clamping sleeve of the sealing cap is
guided by the inner walls of the socket engagement eyes."
Appeal Br. 3--4.
Appellant also contends that a similar limitation in claim 7 is not
disclosed by either Shera or Dwinell. Id. Appellant argues that Shera does
not disclose socket engagement eyes. Id. Appellant also argues that Shera's
"annular detent element ... engages, and is compressed by, inner walls of
the counter detent elements 27, and is not guided by the inner wall of the
bung stopper." Id. Appellant also argues that in Shera, "the diameter of the
inner walls of the counter detent elements is clearly smaller than the external
diameter of the annular detent element on the clamping sleeve of the sealing
cap." Id. at 5. Appellant admits that Dwinell discloses socket engagement
eyes but argues that "the external diameter of the annular detent element on
the clamping sleeve of the sealing cap disclosed in Dwinell et al. is not
approximately equal to a diameter of the inner walls of the socket
engagement eyes, as required in the pending claims. Instead ... [it] is
necessarily greater than the diameter of the inner walls of the socket
engagement eyes." Id. Appellant refers us to Figure 1 of Dwinel, which
Appellant argues shows that the annular detent element is received in a
recess "past the diameter of the socket engagement eye inner wall." Id.
Appellant also argues that Dwinell does not disclose the inner wall of the
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Appeal2015-001073
Application 12/787,458
socket engagement eyes guiding the annular detent elements before locking
of the counter detent elements. Id. at 6. With respect to dependent claims 5
and 11, Appellant contends that the cited references do not disclose "both a
tear-off web and tear-off tab integrated in the sealing cap disc" as required
by the claims. Id.
The Examiner responds that Dwinell, not Shera, discloses socket
engagement eyes as recited in claims 1 and 7. Ans. 6. The Examiner
compares Dwinell's Figure 1 and Appellant's Figure 1 in support of the
finding that Dwinell discloses annular detent elements with approximately
the same diameter as the inner wall of the socket engagement eyes. Id. at 7-
8. With respect to claims 5 and 11, the Examiner responds that Appellant's
argument concerning the recited "tear-off tab" is based on a typographical
error in the Final Action. Id. at 10. The Examiner corrects the typographical
error and finds that "Shera's tear-off tab (23) reads on the functional
limitations of dependent claim 5 by working with tear-off webs (22) to
connect the clamping sleeve (16) to the disc cap (19)." Id. For the
following reasons, we sustain the rejection.
Appellant attempts to distinguish Shera by referring to Shera' s
Figure 1 and arguing that the "the diameter of the inner walls of the counter
detent elements [2 7] is clearly smaller than the external diameter of the
annular detent element [24a] on the clamping sleeve of the sealing cap."
Appellant makes the same argument with respect to Dwinell, i.e., the
external diameter of the annular detent element 24 is greater than the
diameter of the inner walls of the socket engagement eyes 16. We initially
note that, like Shera and Dwinell, the diameter of Appellant's annular detent
element 18 does not precisely equal the diameter of the inner walls of
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Application 12/787,458
Appellant's socket engagement eyes 10. See Ans. 7 comparing Appellant's
Fig. 1 to Dwinell's Fig. 1. However, Appellant's arguments for
distinguishing Shera and Dwinell on this basis are not commensurate in
scope with claim 1 which recites that "an external diameter of the annular
detent element ... being approximately equal to a diameter of the inner
walls of the socket engagement eyes." It is well settled that such words of
approximation are descriptive terms commonly used in patent claims to
avoid a strict numerical boundary to the specified parameter. See Anchor
Wall Sys. v. Rockwood Retaining Walls, Inc., 340 F.3d 1298, 1311 (Fed.Cir.
2003). Appellant's argument is, thus, not persuasive because it fails to
address why Shera and Dwinell do not disclose diameters of the annular
detents elements approximately equal to the diameter of the inner walls of
the socket engagement eyes.
Shera discloses bung stopper 16 which includes lugs 18. Shera, col. 1,
11. 16-18, 29--34, Fig. 2. Lugs 18 include plug lug ledges 27. Id. at col. 2, 11.
20-26. Shera also discloses that lugs 18 "guide the cap and its member 24
into the position indicated." Id. at 11. 33-35. As sealing cap 19 will be
placed on top of bung stopper 16 from the top, annular detent elements 24a
will be guided by the walls of plug lug 18 above ledge 27 prior to
engagement under ledge 27. See id. Fig. 2. The Examiner's finding that
Shera discloses the annular detent element "is guided by the inner walls ...
before locking with the counter detent elements on the inner walls of the
socket engagement eyes of the bung stopper" (Final Act. 3) is, thus,
supported by a preponderance of the evidence.
Dwinell discloses socket engagement eyes 12 with inner walls 16.
Dwinell, Fig. 2, 3. Dwinell discloses overseal 20 with "radially outward
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Application 12/787,458
projecting foot 24 having a bottom cam surface 25." Id. at col. 3, 11. 20-28.
Further, "the segment feet move axially along the lug guide surfaces 16, the
skirt free edge contacts the neck bead 5 causing skirt enlargement 22a to
expand thereover. In fully seated position the segment feet 25 snap into the
wrench engaging lug grooves 17." Id. at col. 3, 11. 52-56, Fig. 1, 2, 4. As
sealing cap 20 will be placed on bung stopper 9 from the top, the annular
detent elements 25 will be guided by inner walls 16 prior to engagement in
counter detent element 17. The Examiner's finding that Dwinell discloses
"the socket engagement eyes guide an overseal or sealing cap into secure
engagement with the counter detent elements" (Final Act. 3) is, thus,
supported by a preponderance of the evidence.
Appellant fails to persuasively apprise us of error in the Examiner's
factual findings or rationale, quoted above, for the combination of Shera and
Dwinell, which we determine to be reasonable and supported by rational
underpinnings. See KSR Intern. Co. v Teleflex Inc., 550 U.S. 398, 416
(2007) ("[ t ]he combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results."). We thus, sustain the rejection of claims 1 and 7 under 35 U.S.C.
§ 103(a).
Claims 5 and 11 each recite "the clamping sleeve of the sealing cap is
connected to the sealing cap disc via tear-off webs and a tear-off tab, which
is integrated in the sealing cap disc." Appeal Br. A-2, A-4 (Claims App.).
The Examiner finds that Shera discloses tear-off webs 22 and tear-off tab 23
integrated into sealing cap 19. Final Act. 4; Ans. 9-10; see Shera Fig. 2, 3.
Appellant does not persuasively apprise us of error in this finding. Appeal
Br. 6. We sustain the rejection of claims 5 and 11 under 35 U.S.C. § 103(a).
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Appeal2015-001073
Application 12/787,458
Appellant does not argue separately for the patentability of claim 2, 3,
8, and 9 that are dependent on claim 12 or claim 7. Appeal Br. 6. We sustain
the rejection of claims 2, 3, 8, and 9 under 35 U.S.C. § 103(a).
Rejections 2 and 3
Claims 4 and 10 are dependent on claim 1 and claim 7 respectively.
The Examiner rejected claims 4 and 10 as unpatentable over Shera, Dwinell
and Buckley. Final Act. 4. Appellant argues that claims 4 and 10 are
allowable because Buckley does not cure the deficiencies of Dwinell and
Shera as to claims 1 and 7 from which claims 4 and 10 depend, respectively.
Appeal Br. 7. Because we sustain the rejection of claims 1 and 7 over
Dwinell and Shera, there are no deficiencies for Buckley to cure. We sustain
the rejection of claims 4 and 10.
Claims 6 and 12 are dependent on claim 1 and claim 7 respectively.
The Examiner rejected claims 6 and 12 as unpatentable over Shera, Dwinell
and Baughman. Final Act. 5. Appellant argues that claims 6 and 12 are
allowable because Baughman does not cure the deficiencies of Dwinell and
Shera as to claims 1 and 7 from which claims 6 and 12 depend, respectively.
Appeal Br. 7. Because we sustain the rejection of claims 1 and 7 over
Dwinell and Shera, there are no deficiencies for Baughman to cure. We
sustain the rejection of claims 6 and 12.
DECISION
The Examiner's decision rejecting claims 1-12 is affirmed.
2 Claim 1 recites, inter alia, "socket engagement eyes for a socket." If
prosecution in this case continues, the italicized recitation should be
reviewed as it appears unrelated to the claimed subject matter.
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Appeal2015-001073
Application 12/787,458
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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