Ex Parte SlomskiDownload PDFPatent Trial and Appeal BoardFeb 7, 201310836016 (P.T.A.B. Feb. 7, 2013) Copy Citation 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. 10/836,016 04/30/2004 Edward J. Slomski 14373/ITW0086.US 9157 48494 7590 02/08/2013 TAYLOR IP, P.C. ILLINOIS TOOL WORKS INC. 142 S. MAIN ST PO BOX 560 AVILLA, IN 46710 EXAMINER PICKETT, JOHN G ART UNIT PAPER NUMBER 3788 MAIL DATE DELIVERY MODE 02/08/2013 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 EDWARD J. SLOMSKI ____________________ Appeal 2010-000765 Application 10/836,016 Technology Center 3700 ____________________ Before JAMES P. CALVE, BRETT C. MARTIN, and NEIL T. POWELL, Administrative Patent Judges. POWELL, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-000765 Application 10/836,016 2 STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1-6, 8-16, and 24-32. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM. THE CLAIMED SUBJECT MATTER Independent claim 1, reproduced below, is illustrative of the appealed subject matter: 1. A container carrier comprising: first and second sheets of pliable material connected to each other by at least one weld line; at least one of said sheets defining an array of loops each adapted for surrounding and holding a container, said array having an outer edge; at least one of said sheets defining a handle portion including a top segment above said array, said top segment having an outer edge; a substantially continuous region of material extending from said outer edge of said handle top segment to said outer edge of said array; and at least one line of perforations extending through said region of material from said outer edge of said array to said outer edge of said handle top segment, perforations in said at least one line of perforations adapted and arranged for tearing said material between said outer edge of said array and said outer edge of said handle top segment, to separate said array into at least a first sub-unit and a second sub-unit while retaining containers of said sub-units secured in said loops, and for separating said handle portion into at least first and second handle sub-portions each connected to a different one of said sub-units, said at least one line of perforations intersecting said weld line for separating said weld line with a part thereof in said Appeal 2010-000765 Application 10/836,016 3 first subunit and another part thereof in said second subunit. THE REJECTIONS The Examiner’s rejections of the claims to be reviewed on appeal include: 1. Claim 28 stands rejected under 35 U.S.C. § 102(b) as anticipated by Olsen ‘821 (US 6,182,821 B1; iss. Feb. 6, 2001). Ans. 3. 2. Claims 30-32 stand rejected under 35 U.S.C. § 102(e) as anticipated by Olsen ‘098 (US 6,969,098 B2; iss. Nov. 29, 2005). Id. 3. Claims 1-6, 8-10, 12-16, and 24-29 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Olsen ‘098 and Olsen ‘821. Id. at 4. 4. Claim 11 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Olsen ‘098, Olsen ‘821, and Marco (US 5,806,667, iss. Sep. 15, 1998). Id. at 7. ANALYSIS Anticipation Rejection of Claim 28 The Examiner finds that the portion of the Olsen ‘821 container carrier identified by reference numerals 35 constitutes a “dividable handle” as recited in claim 28, and that the Olsen ‘821 container carrier has a “line of perforations 50 arranged as claimed.” See Ans. 3. The Examiner also finds that the structure forming the “dividable handle” of Olsen ‘821 includes “a dividable top segment defining an outer edge” and “a dividable bottom segment having a connection to the array along a side opposite to said outer edge” in a region traversed by the line of perforations 50. See Ans. at 8-9; App App see a porti The the E Olse of cl segm App to th and b argu Exam line betw not i 4). inter durin F.3d eal 2010-0 lication 10 lso Ans. 3 on of Figu magnified xaminer f n ‘821 con Appellan aim 28 rel ent,” and ellant, in c e connecti ottom seg es that the iner does of perforat een “separ nclude a to In respo pretation o g examin 1359 (Fed 00765 /836,016 . The Exa re 1 of Ol , annotated inds top an tainer carr t argues th ated to the the “line o laim 28, th on to the a ments of t portion of not meet ions 50 tra ate and di p segmen nse, the Ex f the claim ation. Ans . Cir. 200 miner poi sen ‘821, w portion o d bottom ier. at Olsen “dividabl f perforati e “line of rray and th he handle the Olsen the claim l verses 1) stinct six p t and a bot aminer no language . 8 (citing 4)). Given 4 nts this ou hich we r f Figure 1 segments ‘821 does e top segm ons.” App perforatio erefore cl .” Id. at 14 ‘821 cont imitations does not c ack handl tom segm tes that th in view o In re Am. this, the E t with a m eproduce of Olsen ‘ of a divida not meet a ent,” the “ . Br. 14-1 ns extends early exten . Buildin ainer carri because th onstitute a es” (App. ent (App. B e broadest f the speci Acad. of S xaminer m agnified, a below. 821 illustr ble handle ll of the lim dividable 5. Accord from the ds throug g on this, A er pointed e structur handle bu Br. 14) an r. 14-15; reasonabl fication ap c. Tech. C aintains nnotated ates where of the itations bottom ing to outer edge h the top ppellant to by the e that the t lies d 2) does Reply Br. e plies tr., 367 that the Appeal 2010-000765 Application 10/836,016 5 structure in Olsen ‘821 identified by reference numerals 35 and crossed by the line of perforations 50 constitutes a “dividable handle,” as recited in claim 28, because “Olsen ‘821 . . . indicates that portions 35 are integrally formed (Col. 3:24-25), and therefore the combined structure may be considered a handle.” Id. at 9. The Examiner also maintains that the portion of this dividable handle traversed by the line of perforations 50 includes “a dividable top segment” and “a dividable bottom segment,” as recited in claim 28, because “[c]laim 28 requires no structure to delimit ‘segments’ of the handle into distinct portions.” Ans. 8. Appellant responds that the Examiner ignores aspects of claim 28 and Olsen ‘821. Appellant argues that “Olsen ‘821 clearly and unequivocally shows in Figure 1 and describes in the written teaching that two separate handles 35 are provided.” Reply Br. 4. And Appellant argues that the Examiner errs by “attempt[ing] to show a single portion of the prior art as being both a top segment and a bottom segment as recited in claim 28” because “[t]his ignores that two separate and distinct elements are recited and the prior art shows only a single structure in the portion referred to by the Examiner.” Reply Br. 4. We consider first the dispute regarding whether the claim 28 limitation “handle” reads on the portion of the Olsen ‘821 container carrier identified with reference numerals 35 and traversed by the line of perforations 50 in the region pointed out by the Examiner. The Specification does not explicitly define the term “handle.” However, the Specification discloses that Figure 1 shows a container carrier 10 with a “handle portion 12” (Spec., para. [21]), and the Specification indicates that the handle portion 12 constitutes a “handle” (Id. at para. [35]). The handle Appeal 2010-000765 Application 10/836,016 6 includes “a top segment 30, a bottom segment 32, end segments 34 and 36,” and “[a]n intermediate segment 38” integrally connected to one another. Id. at para. 23; see also Fig. 1. The segments 30, 32, 34, 36, and 38 integrally connect to one another in such a manner that the handle has two handle openings 44 and 46 surrounded by two distinct handle loops connected to one another by intermediate segment 38, each handle loop having its own gripping portion. See Id. at para. 23; see also Fig. 1. Each of the embodiments shown in Appellant’s Figures 2-4 similarly has a handle that includes segments integrally connected to one another in a manner such that the handle has two handle openings surrounded by two distinct handle loops connected by intermediate structure, each of the handle loops including its own gripping portion. See Id., paras. [34]-[37]; Figs. 2-4. Accordingly, in view of the Specification, we conclude that the broadest reasonable interpretation of the term “handle” in claim 28 encompasses structure with two gripping portions formed by two handle loops integrally connected by intermediate structure. Appellant does not point to any portion of claim 28, any portion of the Specification, or any other evidence that requires a narrower interpretation. Because Olsen ‘821 uses reference numerals 35 to identify structure with two gripping portions formed by two handle loops integrally connected by intermediate structure (see Olsen ‘821, col. 3, ll. 24-36 and Fig. 1), the Examiner correctly found that this structure meets the broadest reasonable interpretation of the term “handle” in claim 28. While we appreciate Appellant’s argument that Olsen ‘821 refers to this structure as including “handles 35,” as Appellant notes on pages 13-14 of the Appeal Brief, the test Appeal 2010-000765 Application 10/836,016 7 for anticipation “is not an ‘ipsissimis verbis’ test,” i.e., identity of terminology is not required. In re Bond, 910 F.2d 831, 832-33 (Fed. Cir. 1990). Appellant’s arguments based on differences in terminology between claim 28 and the disclosure of Olsen ‘821 do not establish error in the Examiner’s finding because Appellant has not pointed to any specific structural feature that the claimed “handle” requires and that is missing from the structure identified with reference numbers 35 in Olsen ‘821. We consider next the dispute regarding whether Olsen ‘821 includes a “top segment” and a “bottom segment,” as recited in claim 28, in the locations identified by the Examiner. As noted above, Appellant’s arguments that the Examiner erred rest on the assertion that in claim 28, the “line of perforations extends from the outer edge to the connection to the array and therefore clearly extends through the top and bottom segments of the handle.” App. Br. 14. With this in mind, we look to the Specification for guidance regarding the broadest reasonable interpretation of the claim language “top segment” and “bottom segment.” The Specification discloses that “a substantially continuous region of material extends from handle top segment 30 to the outer edge of container holding portion 14, and a line of perforations 76 extends through the material from the outer edge of container holding portion 14 to the outer edge of handle top segment 30.” Spec., para. 27. As Appellant’s Figure 1 shows, the substantially continuous region of material through which the line of perforations 76 extends includes both the handle top segment 30 and the handle bottom segment 32. Accordingly, if we accept Appellant’s argument that claim 28 requires that the line of perforations extends through the top and bottom segments, we conclude Appeal 2010-000765 Application 10/836,016 8 based on the disclosure in the Specification that the broadest reasonable interpretation of the claim limitations “top segment” and “bottom segment” encompasses top and bottom portions of a substantially continuous region of material. Thus, Appellant’s arguments do not apprise us of error in the Examiner’s finding that Olsen ‘821 includes a “dividable top segment” and a “dividable bottom segment,” as recited in claim 28, in the portions of the substantially continuous region of material pointed out by the Examiner. 1 In addition to the foregoing, Appellant argues that claim 28 would not have been obvious in view of Olsen ‘821. App. Br. 15. These arguments also fail to apprise us of error in the Examiner’s finding that Olsen ‘821 anticipates claim 28. Anticipation Rejection of Claims 30-32 Appellant argues claims 30 and 31 as a group (App. Br. 16-18), and Appellant subsequently argues claims 30 and 32 as a group (App. Br. 19). Accordingly, we select independent claim 30 as representative, and we treat dependent claims 31 and 32 as standing or falling with representative claim 30. See 37 C.F.R. § 41.37(c)(1)(vii). The Examiner finds that the Olsen ‘098 disclosure of dividing a band 160 of carriers 10 (in connection with Figure 4 of Olsen ‘098) would produce “[a] group of individualized and separate carrier subunits” meeting all of the limitations of claim 30. Ans. 3-4 and 9-10. Appellant disputes this finding, arguing that “Olsen ‘098 clearly describes item 160 . . . as a band or 1 If Appellant’s argument that claim 28 requires that the line of perforations extends through the top and bottom segments were incorrect, Appellant’s entire basis for asserting that Olsen ‘821 fails to meet the “dividable top segment” and “dividable bottom segment” limitations would collapse. Appeal 2010-000765 Application 10/836,016 9 supply that includes a plurality of carriers, not a carrier that in and of itself is dividable into a plurality of subunits each having a portion of a handle and a portion of an array which together comprise all of the handle and all of the array in a single carrier as required in [claim 30].” App. Br. 17. Appellant further argues that “[t]he carriers 160 of Olsen ‘098 each have a separate handle and a separate array.” Id. at 17-18. In response, the Examiner notes that the band 160 of Olsen ‘098 has carriers 10 integrally formed with one another, and the handle and array portions of each carrier 10 interconnected prior to separation. Ans. 10. Accordingly, the Examiner finds, the band 160 forms a cohesive carrier, the handle portions form all of the handle of the cohesive carrier, and the array portions form all of the array of the cohesive carrier. Id. Appellant responds that the Examiner’s “analysis again ignores the clear and unequivocal teachings of the applied references.” Reply Br. 5. Appellant argues that Olsen ‘098 does not suggest that band 160 and the handle and array portions therefore should be considered or could be used as a cohesive unit. Id. Appellant’s foregoing arguments focus on the names and uses that Olsen ‘098 discloses for the structure it shows in Figure 4. Appellant’s arguments do not point to any specific structural features required by the claims and missing from Olsen ‘098. The test for anticipation “is not an ‘ipsissimis verbis’ test,” i.e., identity of terminology is not required. Bond, 910 F.2d at 832-33. Additionally, it is well settled that the recitation of a new intended use for an old product does not make a claim to that old product patentable. In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). Thus, because Appellant’s arguments related to the “cohesive carrier” do not Appeal 2010-000765 Application 10/836,016 10 identify any specific structural feature or features missing from the prior art, they do not apprise us of error in the rejection. Appellant also argues that “Olsen ‘098 does not teach separating a weld line of a carrier into weld line portions.” App. Br. 19. The Examiner counters that “it is noted that Appellant’s own weld lines are not continuous with subsequent separation, but are interrupted by openings 100/102/104.” Ans. 10. In response, Appellant reverts to the argument that the band 160 disclosed by Olsen ‘098 does not constitute a cohesive carrier, stating that “[o]penings 170/172 of Olsen ‘098 are not openings in a carrier but instead openings between adjacent carriers, as discussed above.” Reply Br. 6. Because they do not point out any specific structural distinction between claim 30 and the Olsen ‘098 band 160, Appellant’s arguments regarding separating a weld line do not apprise us of error in the rejection. Appellant also argues that Olsen ‘098 does not anticipate claim 30 because “Olsen ‘098 does not teach a handle portion welded to a container holding portion, but instead two sheets welded together, with each sheet having an integral handle portion and a container holding portion.” Reply Br. 6. The Examiner maintains that claim 30 “only requires that the array of loops and handle of the individual subunits be welded; Olsen ‘098 clearly discloses this feature at 28.” Ans. 10. Appellant’s argument appears to assume that the claim language “each carrier subunit . . . having an array portion with a handle portion welded thereto” is limited to Appellant’s Figure 4 embodiment and excludes Appellant’s embodiments of Figures 1 and 2. Appellant’s characterization of the prior art as having “two sheets welded together, with each sheet having an integral handle portion and a container holding portion” also Appeal 2010-000765 Application 10/836,016 11 describes Appellant’s embodiments of Figures 1 and 2, but does not describe Appellant’s embodiment of Figure 4. See Spec., paras. [22]-[26]; Fig. 1. Additionally, the plain meaning of the claim language would encompass a container carrier having “two sheets welded together, with each sheet having an integral handle portion and a container holding portion” because an array portion of one sheet of the container carrier has a handle portion of the other sheet welded thereto by the welds that connect the two sheets. Thus, the claim language reads both on the container carrier of Appellant’s Figures 1, 2 and on the container carrier of Olsen ‘098, unless we read into claim 30 Appellant’s Figure 4 embodiment as narrowing the broader claim language. Appellant has not pointed to any portion of the Specification or any other evidence suggesting that the correct interpretation of claim 30 incorporates Appellant’s Figure 4 embodiment and excludes Appellant’s embodiments of Figures 1 and 2. Thus, we conclude the claim is not so limited. See SuperGuideCorp. V. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) (admonishing against reading into a claim a particular embodiment of the written description when the claim language is broader than the embodiment.). Accordingly, Appellant’s foregoing argument does not apprise us of error in the rejection. Appellant also argues that claims 30-32 would not been obvious in view of Olsen ‘098. App. Br. 18-19. These arguments also fail to apprise us of error in the Examiner’s finding that Olsen ‘098 anticipates claim 30. Obviousness Rejection of Claims 1-6, 8-10, and 25 Appellant argues claims 1-6, 8-10, and 25 as a group. We select independent claim 1 as representative. Appeal 2010-000765 Application 10/836,016 12 The Examiner finds that Olsen ‘098 discloses a container carrier that meets every limitation of claim 1 except for one thing: “Olsen ‘098 merely lacks the at least one line of perforation.” Ans. 4. The Examiner also finds that Olsen ‘821 teaches extending a line of perforations through a carrier, including extending the line of perforations through a handle portion 35 of the carrier, for dividing the carrier into subunits. Id. The Examiner concludes that it would have been obvious to add a line of perforations as disclosed by Olsen ‘821 to the carrier of Olsen ‘098 and to extend the line of perforations all the way across the Olsen ‘098 carrier, including across the weld lines of the ‘098 carrier, to allow quickly dividing the Olsen ‘098 carrier into subunits. Id. Appellant argues that nothing in the teachings of Olsen ‘098 together with Olsen ‘821 suggests a line of perforations for separating the carrier arrays into first and second subunits, with the line of perforations extending across weld lines and through the main handle of the carrier to divide the main handle into sub handle portions, each suitable for carrying a part of the original package. App. Br. 24. Regarding a line of perforations extending across weld lines, Appellant notes that 1) Olsen ‘821 does not disclose a weld line and 2) Olsen ‘098 does not disclose a line of perforations extending through welds. Id. at 21. The Examiner responds that “Olsen ‘098 defines weld lines 24/26/28 and that any separation would necessarily need to be provided through said lines.” Ans. 14. In response, Appellant states “[j]ust because it is necessary to modify the prior art in a specific way to achieve the present invention does not render that modification obvious.” Reply Br. 9. Appeal 2010-000765 Application 10/836,016 13 Appellant misapprehends and does not squarely rebut the Examiner’s position regarding how the cited references render obvious the claim limitations relating to a line of perforations extending across weld lines. The Examiner finds 1) that the Olsen ‘821 disclosure of a line of perforations through a container carrier would have given a person of ordinary skill in the art reason to add a line of perforations through the container carrier of Olsen ‘098 (Ans. 4) and 2) that doing so would necessarily involve extending the line of perforations across the weld lines in Olsen ‘098 (See Ans. 14). By merely arguing that neither reference by itself discloses a line of perforations extending across a weld line, Appellant has not demonstrated any error in the Examiner’s position based on the combined teachings of Olsen ‘821 and Olsen ‘098. Appellant also advances various arguments challenging the Examiner’s conclusion that the cited references would have rendered it obvious to extend a line of perforations through the handle portion of Olsen ‘098. Appellant argues that “Olsen ‘821 teaches . . . two distinct and separate sub-unit handles 35” (App. Br. 20), and that “[n]o handle of any type is divided or torn in any way in the teaching of Olsen ‘821” (Id. at 21.). Appellant also argues that “[i]n every example of Olsen ‘821, the main handle for the carrier is removed when the carrier is divided.” Id. at 23. Based on this, Appellant argues that Olsen ‘821 teaches away from the claimed invention. Id. Appellant similarly argues that “the entire teaching of Olsen ‘821 must be applied, including the teaching to remove the main handle whenever dividing the larger package.” Id. at 22 (emphasis removed). Based on these arguments, Appellant submits that the Appeal 2010-000765 Application 10/836,016 14 Examiner’s conclusion of obviousness stems from improper hindsight reconstruction. App. Br. 24. In response, the Examiner maintains that, contrary to Appellant’s arguments, Olsen ‘821 teaches extending a line of perforations through a “handle portion 35” for dividing it. Ans. 11 and 13. On this point, the Examiner states: “It is respectfully asserted that portion 35 of Olsen ‘821 is a unitary piece of handle material prior to separation along line 50. . . . It may have two gripping portions, but this does not detract from its unitary nature prior to separation.” Ans. 13. The Examiner also notes that “Olsen ‘821 in no way criticizes, discredits, or otherwise discourages the solution presented by the Appellant and therefore cannot be considered to ‘teach away’ from the claimed invention.” Ans. 11 (citing In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)). The Examiner acknowledges that Olsen ‘821 discloses removing a handle, in addition to dividing a handle. Id. But the Examiner finds that simply applying to Olsen ‘098 the Olsen ‘821 teaching of dividing a container carrier through the handle would beneficially enable separation of the ‘098 container carrier into subunits that retain the handle function, rather than removing the handle and eliminating the handle function. Id. at 13. Accordingly, the Examiner asserts that the Olsen ‘821 disclosure of the additional possibility of removing a handle does not negate the obviousness of applying to Olsen ‘098 the Olsen ‘821 disclosure of dividing a container carrier through a handle portion, which the Examiner finds would yield only predictable results. Id. at 12. To address the dispute regarding whether Olsen ‘821 discloses using a line of perforations extending through a handle portion to divide the handle portion, we first consider the broadest reasonable interpretation of “handle Appeal 2010-000765 Application 10/836,016 15 portion,” as recited in claim 1. Appellant has not pointed to any aspect of claim 1, the Specification, or any other evidence that requires a narrower interpretation of the term “handle portion” in claim 1 than the term “handle” in claim 28. Accordingly, for substantially the reasons discussed above in connection with the interpretation of “handle” in claim 28, we conclude that the broadest reasonable interpretation of the term “handle portion” in claim 1 encompasses structure with two gripping portions formed by two handle loops integrally connected by intermediate structure. Based on this interpretation, we agree with the Examiner’s findings that the portion of Olsen ‘821 identified by reference numerals 35 constitutes a handle portion, and that Olsen ‘821 discloses extending a line of perforations through this handle portion and using the line of perforations to divide the handle portion as part of dividing the container carrier. 2 Additionally, we agree with the Examiner that Appellant has not established that Olsen ‘821 teaches away from the claimed invention, as Appellant has not cited any evidence or provided any reasoning that convincingly contradicts the Examiner’s finding that Olsen ‘821 does not criticize, discredit, or discourage dividing a handle portion as part of dividing a container carrier. See Fulton, 391 F.3d at 1201. Similarly, Appellant has not cited any authority or evidence that actually supports the proposition that a person of ordinary skill in the art could apply the teachings 2 Indeed, even if Appellant did establish that the broadest reasonable interpretation of the term “handle” in claim 28 does not encompass the structure described by Olsen ‘821 as “handles 35,” the term “handle portion” used in claim 1 would appear to have a broader meaning than “handle,” and Appellant has not pointed to any structural feature that the term “handle portion” requires that would not exist in a structure that includes two integrally formed handles. Appeal 2010-000765 Application 10/836,016 16 of Olsen ‘821 only by blindly copying every aspect of its disclosure. See App. Br. 22. Appellant’s arguments lose sight of the two most salient aspects of the rejection: 1) the Examiner’s undisputed finding that the Olsen ‘098 container carrier differs from the claimed container carrier only by the lack of a line of perforations for dividing the carrier (Ans. 4) and 2) the Examiner’s correct finding that Olsen ‘821 discloses a line of perforations extending through a container carrier, including through a handle portion of the carrier, for dividing the carrier (Id. at 4, 11, and 13). As the Examiner correctly found, Olsen ‘821 discloses two approaches for dealing with a handle portion that spans the middle of a container carrier prior to division of the container carrier: 1) removing the handle portion, or 2) dividing the handle portion. See Id. at 4 and 11-12. Given this, we agree with the Examiner that a person of ordinary skill in the art would have recognized the possibility and associated benefits of simply applying to the Olsen ‘098 carrier the Olsen ‘821 teaching of a line of perforations used to divide both an array of loops and an adjacent handle portion of a container carrier. Accordingly, we also agree with the Examiner’s conclusion that the container carrier of claim 1 would have been obvious to a person of ordinary skill in the art based on Olsen ‘098 and Olsen ‘821. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (“[T]he analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.”); see also Id. at 421 (“A person of ordinary skill is also a person of ordinary creativity, not an automaton.”). Because the Examiner’s conclusion of obviousness rests on Appeal 2010-000765 Application 10/836,016 17 articulated reasoning with rational underpinning based on the disclosures in the cited references, we disagree with Appellant’s argument that the Examiner has resorted to improper hindsight reconstruction. Obviousness Rejection of Claims 12-16 Appellant argues claims 12-16 as a group. We select independent claim 12 as representative. Appellant challenges the rejection of claim 12 in substantially the same way as Appellant challenged the rejection of claim 1: Appellant argues that it would not have been obvious in view of Olsen ‘821 and Olsen ‘098 to divide a weld or divide a handle. App. Br. 26-27. In support of this argument, Appellant does not offer any significant reasoning or evidence beyond that offered in support of the arguments Appellant advanced in connection with claim 1. Accordingly, for substantially the reasons discussed above in connection with claim 1, Appellant does not apprise us of error in the rejection of claim 12 under 35 U.S.C. § 103(a). Obviousness Rejection of Claims 24 and 27 Appellant argues claims 24 and 27 as a group. We select claim 24 as representative. Regarding the rejection of claim 24, Appellant advances that “[t]he analysis is similar to that provided above with respect to claim 1.” App. Br. 29. As with claim 1, Appellant argues that “[t]he combination of references fails to teach dividing a weld or dividing a handle as recited in claim 24.” Id. In support of this, Appellant primarily offers the same substantive arguments as Appellant presents in connection with claim 1. See Appeal 2010-000765 Application 10/836,016 18 Id. at 28-29 and 23-25. These arguments fail to apprise us of error in the rejection for substantially the same reasons as discussed above in connection with claim 1. Appellant also argues that [d]ividing a single ply, side-applied carrier of Olsen ‘821 does not make obvious using a line of perforations extending through a multi-ply sheet and through welds connecting the sheet to separate a top lift two ply carrier in to [sic] separate subunits each having part of the handle, part of the array, and a segment of the weld. Id. at 28. Appellant does not support this argument with any evidence or substantive reasoning. Accordingly, this argument does not apprise us of error in the rejection of claim 24. Appellant also argues that claim 24 includes various limitations that one reference or the other does not disclose. Id. But Appellant does not point to any limitation of claim 24 that would not exist in the carrier resulting from modifying Olsen ‘098 based on Olsen ‘821 in the manner suggested by the Examiner. Accordingly, Appellant’s arguments that one reference or the other lacks certain limitations of claim 24 do not apprise us of error in the rejection of claim 24. Obviousness Rejection of Claim 28 Appellant traverses the obviousness rejection of claim 28 by arguing that “[n]one of the prior art references teaches a dividable handle of any type, let alone the specific structure of a dividable handle with dividable top and bottom segments for a carrier having a line of perforations for tearing the handle into sub-handle portions.” App. Br. 29-30. This argument fails Appeal 2010-000765 Application 10/836,016 19 to recognize that, as discussed above in connection with the anticipation rejection of claim 28, Olsen ‘821 does disclose a dividable handle with dividable top and bottom segments. Additionally, the argument fails to squarely address the Examiner’s position that applying the Olsen ‘821 disclosure of a line of perforations through the center of a container carrier to Olsen ‘098 would also result in a dividable handle with dividable top and bottom segments. See Ans. 4, 7, and 13. Obviousness Rejection of Claim 29 Appellant traverses claim 29 by arguing that “[n]o dividable double layer handle is taught by the prior art.” App. Br. 30. This argument fails to squarely address the Examiner’s position that modifying the container carrier of Olsen ‘098 with the line of perforations of Olsen ‘821 would result in a dividable double-layer handle. See Ans. 4, 7, 13, and 17. Obviousness Rejection of Claim 11 Regarding claim 11, Appellant offers no substantive arguments beyond pointing to the arguments made with respect to claim 1, from which claim 11 depends. Accordingly, for substantially the reasons discussed above in connection with claim 1, Appellant does not apprise us of error in the obviousness rejection of claim 11. DECISION We affirm the Examiner’s decision regarding claims 1-6, 8-16, and 24-32. Appeal 2010-000765 Application 10/836,016 20 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). AFFIRMED hh Copy with citationCopy as parenthetical citation