Base Brands, LLC

Patent Trials and Appeals Board

Mar 16, 2022

2022001011 (P.T.A.B. Mar. 16, 2022)

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. 15/076,910 03/22/2016 Patrick Spivey BABR-2002 1493 121310 7590 03/16/2022 Park, Vaughan, Fleming & Dowler LLP 5847 San Felipe, Suite 1700 Houston, TX 77057 EXAMINER PERREAULT, ANDREW D ART UNIT PAPER NUMBER 3735 NOTIFICATION DATE DELIVERY MODE 03/16/2022 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): houstondocket@parklegal.com uspto-incoming@parklegal.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PATRICK SPIVEY and KENNETH KREAFLE Appeal 2022-001011 Application 15/076,910 Technology Center 3700 Before JENNIFER D. BAHR, CHARLES N. GREENHUT, and GEORGE R. HOSKINS, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-3, 6-39, 41-43, 45-47, 49-56, and 58-61, which are all the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Base Brands, LLC. Appeal Br. 1. Appeal 2022-001011 Application 15/076,910 2 CLAIMED SUBJECT MATTER Appellant’s invention is directed “to drinking vessels, and more specifically, to an insulated drinking vessel with a multifunction lid.” Spec. ¶ 1. Of the pending claims, claims 1, 12, 24, and 35 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. An apparatus, comprising: a lid configured to engage an opening of a container for containing a liquid, the lid configured to retain the liquid within the container; a drinking opening in the lid sized and configured to allow a user to drink from the drinking opening; a rim on a periphery of the lid having a raised edge around the entire periphery of the lid, wherein the rim is sized and configured to engage a lip of a user and reduce spillage of liquid dispensed from the drinking opening; a drinking straw opening in the lid comprising a removable drinking straw sized and configured to allow a user to drink from the removable drinking straw, where the drinking straw opening is spaced laterally apart and separate from the drinking opening in the lid, such that the drinking opening and the drinking straw opening provide independent drinking openings in the lid; a first cover attached to the lid to move between a first position and a second position relative to the drinking opening, whereby the first cover is configured to preclude liquid from being dispensed from the drinking opening in the first position and to allow liquid to be dispensed from the drinking opening in the second position; and a second cover attached to the lid to move between a first position and a second position relative to the drinking straw opening, whereby the second cover is configured to preclude liquid from being dispensed from the drinking straw opening in the first position and to allow liquid to be dispensed from the drinking straw opening in the second position, whereby the first cover and the second cover are attached to the lid such that movement of the first cover between its first Appeal 2022-001011 Application 15/076,910 3 and second position is independent of movement of the second cover between its first and second position, and movement of the second cover between its first and second position is independent of movement of the first cover between its first and second position. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Clare US 3,061,151 Oct. 30, 1962 Bodum US D655,967 S Mar. 20, 2012 McMullin US 8,672,174 B1 Mar. 18, 2014 Lin US 2018/0332987 A1 Nov. 22, 2018 REJECTIONS The Examiner rejects the claims as follows: 1) claims 2 and 34 under 35 U.S.C. § 112(b) as being indefinite;2 2) claims 1, 2, 6-12, 15-39, 41-43, 45-47, 49-56, and 58-61 under 35 U.S.C. § 103 as being unpatentable over McMullin and Bodum; 3) claim 3 under 35 U.S.C. § 103 as being unpatentable over McMullin, Bodum, and Clare; and 4) claims 13 and 14 under 35 U.S.C. § 103 as being unpatentable over McMullin, Bodum, and Lin. 2 The Examiner withdrew an indefiniteness rejection of claims 8 and 16. Ans. 19; see Final Act. 3. Appeal 2022-001011 Application 15/076,910 4 OPINION Indefiniteness The Examiner determines claims 2 and 34 “are incomplete for omitting essential structural cooperative relationships of elements,” namely, the relationship between the vent opening and the other elements of Appellant’s device, more particularly, the vent opening being integrated with the drinking straw opening, which claim 3 recites but which claims 2 and 34 do not recite. Final Act. 2; Ans. 19-20. Appellant argues that Appellant’s Specification does not indicate that it is essential that the vent opening be integrated with the drinking straw opening. Appeal Br. 12. For the reasons that follow, this argument is persuasive. The Specification discloses “a vent port for allowing pressure equalization and steady flow of the fluid from the vessel.” Spec. ¶ 31. The Specification also discloses that seal 802 may cover drinking straw opening 812 and may also cover vent port 814 partially, but not completely. Id. at ¶ 41. Further, the Specification discloses that “a user may drink from the spout at a high rate because of the enlarged vent capacity created by opening the straw hole 812 in addition to the vent hole 814 (shown in FIG. 8).” Id. at ¶ 44. Figure 8 appears to depict vent port 814 being integrated with drinking straw opening 812. We do not discern anything in the disclosure of the present application, however, that indicates that the vent port being integrated with the drinking straw opening is essential to the operation of Appellant’s device. Further, the Examiner does not specifically identify any disclosure in Appellant’s Specification, or offer either evidence or some technical explanation, that indicates that it is necessary or essential to the Appeal 2022-001011 Application 15/076,910 5 operation of the seal, the drinking straw opening, or the vent port/opening that the vent port/opening be integrated with the drinking straw opening. Accordingly, we do not sustain the rejection of claims 2 and 34 under 35 U.S.C. § 112(b). Obviousness-McMullin and Bodum Claims 1, 2, 6, 7, 9, 10, 12, 15, 17, 18, 24-26, 35-37, 45, 46, 49, 52- 56, and 58-61 Appellant presents arguments for independent claim 1 and relies on these same arguments for independent claims 12, 24, and 35. Appeal Br. 15-32. Appellant does not present any separate arguments specifically addressing dependent claims 2, 6, 7, 9, 10, 15, 17, 18, 25, 26, 36, 37, 45, 46, 49, 52-56, and 58-61. Id. at 15-52. Thus, we decide this rejection based on claim 1, with claims 2, 6, 7, 9, 10, 12, 15, 17, 18, 24-26, 35-37, 45, 46, 49, 52-56, and 58-61 standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (permitting the Board to select a single claim to decide the appeal as to a single ground of rejection of a group of claims argued together). Appellant begins by expressing confusion about the Examiner’s statement that the claims are being treated as product-by-process claims, as well as confusion regarding which limitations are being treated as product-by-process limitations. Appeal Br. 16. The only limitation that the Examiner specifically identifies as being a product-by-process limitation is the term “vacuum sealed.” Final Act. 3. As Appellant notes, this terminology appears only in claim 14 and, thus, does not appear to be pertinent to the claims rejected as being unpatentable over McMullin and Bodum. Appeal Br. 16; Claims App. 5. However, Appellant’s identification Appeal 2022-001011 Application 15/076,910 6 of this superfluous comment by the Examiner does not point out error in the Examiner’s conclusion that the subject matter of claim 1 would have been obvious. Along similar lines, Appellant asserts error on the part of the Examiner for addressing, in the explanation of the basis for rejecting each of the independent claims, various limitations that are not in the independent claims. Appeal Br. 21-25; see Final Act. 3-5, 7-9, 10-11, 13-15. Although we agree with Appellant that the Examiner’s practice of discussing limitations contained in dependent claims in the explanation of the rejection of the independent claims, and then referring vaguely back to such discussions later in addressing the dependent claims (see, e.g., Final Act. 6 (claim 11), 9-10 (claims 19, 23), 12 (claims 29, 30)) detracts from the readability of the Final Office Action, these findings and rationales are effectively simply superfluous for the independent claims. Thus, Appellant’s objection to them does not apprise us of error in the Examiner’s conclusion that the subject matter of claim 1 would have been obvious. Appellant also takes issue with the Examiner’s characterization of language following “configured” in the claims as intended use limitations. Appeal Br. 18-20. However, while arguing that these limitations refer to a specific structure, aside from the arguments directed to the drinking straw, which we address below, Appellant does not present any substantive arguments as to why the structures of the prior art on which the Examiner reads the recited structure fail to satisfy the recited structural limitations argued. Thus, Appellant’s general objections to the Examiner’s “intended use” characterizations do not apprise us of error in the Examiner’s conclusion that the subject matter of claim 1 would have been obvious. Appeal 2022-001011 Application 15/076,910 7 Turning now to the “drinking straw limitation,” the Examiner reads this limitation on McMullin’s straw member 26, which McMullin discloses “may be . . . removably attached to the cover member” (cover member 14). Final Act. 4; McMullin 2:41-42, 4:36-45; Figs. 5, 6. Appellant argues that McMullin’s straw member 26 “is not ‘a removable drinking straw sized and configured to allow a user to drink from the removable drinking straw,’” as called for in claim 1. Appeal Br. 27. Appellant submits that “a user drinks from permanently affixed drinking member 20” and that “it is impossible for a user to drink . . . from removable member 26 because member 26 is not even accessible to a user for that purpose.” Id. (arguing that “user access to member 26 is blocked/prohibited by the ‘real’ and permanently affixed straw member 20”). Appellant’s argument is not persuasive. Claim 1 does not recite that the removable drinking straw is accessible for direct contact with the user’s lips while drinking from the drinking straw. See Ans. 22 (pointing out that the claims do not require the user’s mouth to touch the straw). Appellant’s straw 1202 is inserted through a straw hole and extends into an interior portion of vessel 102. Spec. ¶ 45. Further, as illustrated in Figure 12, Appellant’s straw 1202 has an aperture, or lumen, extending therethrough to allow beverage to be sucked out of vessel 102. Similarly, McMullin discloses that straw member 26 includes aperture 28 therethrough and extends into container 12 through first aperture 16 in lid assembly 10 “so that the beverage may be sucked out of the container 12 through the straw member 26, the first aperture 16[,] and the drinking member 20.” McMullin 4:39-43. Thus, much like Appellant’s straw 1202, McMullin’s Appeal 2022-001011 Application 15/076,910 8 straw member 26 is sized and configured to allow a user to drink from it. That is all the claim requires in this regard. Appellant attacks the articulated reasons for combining McMullin and Bodum. Appeal Br. 27-30. Appellant’s first attack is that “independent claims 1, 12, 24, and 35 do not require any ‘locks/tab, shape container.’” Appeal Br. 29. This attack is unavailing. As mentioned above, we agree with Appellant that the Examiner’s practice of addressing all of the features of both the independent claims and the dependent claims in the explanations of the rejections of the independent claims, and then referring back vaguely to these discussions in addressing the dependent claims actually reciting those features, detracts from the readability of the Final Office Action. Nonetheless, Appellant’s objection to these superfluous discussions in the explanation of the rejections of the independent claims does not apprise us of error in the Examiner’s conclusion that the subject matter of claim 1 would have been obvious. Appellant also contends that the Examiner cites no evidence to support the rationale for modifying McMullin’s lid in view of Bodum to provide a rim with a raised edge around the entire periphery of the lid. Appeal Br. 31. Citing the rim with raised edge on the entire periphery of Bodum’s lid, as shown in Figures 1 and 2 of Bodum, as an example, the Examiner “notes that it is well known in the art that a rim with the raised edge around the entire periphery” of Bodum’s lid “permits the user to have a larger as well [as] sloped and gradual surface that permits a more desired flow into the user[’]s mouth as well as a cavity from which liquid can be collected in case of unintentional escape.” Final Act. 5. Appeal 2022-001011 Application 15/076,910 9 Bodum is a design patent and, thus, does not contain written disclosure ascribing any utility or functionality to features illustrated. However, what a reference teaches or suggests must be examined in the context of the knowledge, skill, and reasoning ability of a skilled artisan and is not “limited to what a reference specifically ‘talks about’ or what is specifically ‘mentioned’ or ‘written’ in the reference.” Syntex (U.S.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1380 (Fed. Cir. 2005). A conclusion of obviousness must be supported by explicit findings and analysis establishing an apparent reason to combine the known elements in the manner required in the claim at issue. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). However, “the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for [the PTO] can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” Id. In the case of Bodum, which discloses and claims an “ornamental design for a beverage maker,” a person having ordinary skill in the art would have appreciated, from Figures 2 and 10 of Bodum, that the lid is designed with an opening for receiving a mixer for blending beverage components in the container on which the lid is placed and for permitting a user to drink beverage from the container, through an opening in the periphery of the lid, after the beverage has been mixed. Further, a skilled artisan familiar with the process of drinking beverage from a beverage container through an opening in the lid would have experienced and understood that beverage often spills inadvertently onto the lid or gets left behind on the lid during the drinking process. Thus, the artisan would have appreciated that the rim with a raised edge around the periphery of the lid provides a cavity to contain Appeal 2022-001011 Application 15/076,910 10 beverage that spills or remains on the top of the lid. Further, the skilled artisan would have also appreciated that an outwardly sloped rim provides a convenient spout to facilitate flow of the beverage into the user’s mouth. An artisan must be presumed to know something about the art apart from what the references disclose. See In re Jacoby, 309 F.2d 513, 516 (CCPA 1962). Moreover, skill is presumed on the part of those practicing in the art. See In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985). After all, “[a] person of ordinary skill is also a person of ordinary creativity, not an automaton.” KSR, 550 U.S. at 421. Thus, the Examiner’s articulated reason for providing a rim with a raised edge around the entire periphery of McMullin’s lid has rational underpinnings. For the above reasons, Appellant fails to apprise us of error in the Examiner’s conclusion that the subject matter of claim 1 would have been obvious, which is persuasively articulated and supported by a preponderance of the evidence. Accordingly, we sustain the rejection of claim 1, and of claims 2, 6, 7, 9, 10, 12, 15, 17, 18, 24-26, 35-37, 45, 46, 49, 52-56, and 58-61, which fall with claim 1, as being unpatentable over McMullin and Bodum. Claims 8, 16, 27, 28, 38, 39, 41-43, 47, and 50 Claims 8, 16, 27, 28, 38, 39, 41-43, 47, and 50 recite, in relevant part, a locking mechanism for locking the first cover, or one of the first cover and the second cover, in its first position (i.e., the position covering the drinking opening or the drinking straw opening to preclude liquid from being dispensed from the opening). Claims App. 3, 5, 9, 11-12. Appellant makes substantially the same arguments for all of these claims. See Appeal Br. 32, Appeal 2022-001011 Application 15/076,910 11 35, 44, 50. We select claim 8 as representative of this group of claims, and claims 16, 27, 28, 38, 39, 41-43, 47, and 50 stand or fall with claim 8. The Examiner finds that the bead shown on the left end of the first cover (closure member 22) in McMullin’s Figures 5 and 6 and on the right end of closure member 22 in McMullin’s Figure 7 is a locking mechanism for locking the first cover in its first position. Final Act. 6. According to the Examiner, engagement of this bead with the raised rim, as shown in McMullin’s Figure 5, “maintains the device in a fastened position until the user applies a force to cause the locking mechanism to disengage.” Ans. 27. In this respect, the Examiner finds that McMullin’s bead functions in substantially the same manner as Appellant’s locking mechanism 616, which, as described in the Specification “may include a flange with a recess and a lip thereon for engaging an edge of the raised edge 604” and, thus, according to the Examiner, “is merely a lip portion that engages an edge.” Id. (citing Spec. ¶ 39). Appellant admits that “[t]he tip of the first cover in McMullin touches the rim of the lid,” but contends that “it does not show anything locking.” Appeal Br. 32. Appellant also submits that Appellant’s disclosed locking mechanism “includes a tab . . . that engages or clips/clamps over the raised edge[] 604 of the lid so as to secure, or lock, the cover in place, such that it can only be released or unlocked through force by a user.” Reply Br. 20; see id. at 21 (relying on Figs. 11A, 11B, 11C). Thus, Appellant contends that “the disclosed and claimed locking mechanism in the present application does not merely refer to two surfaces that simply touch each other.” Id. at 21. Appeal 2022-001011 Application 15/076,910 12 Appellant’s Specification and drawings do not clearly or unequivocally support Appellant’s assertions regarding the clipping/clamping of a tab over the raised edge. In describing the locking mechanism, Appellant’s Specification states only that “the first cover 612 may include a locking mechanism 616 for locking the first cover 612 into a closed or open position” and that, “[i]n one embodiment, the locking mechanism 616 may include a flange with a recess and a lip thereon for engaging an edge of the raised edge 604.” Spec. ¶ 39. Neither this description nor the depiction of locking mechanism in Figures 11A-11C relied on by Appellant conveys a clipping or clamping function of the lip aside from a lip of the locking mechanism engaging an edge of the raised edge. In light of this disclosure, the Examiner’s position that McMullin’s bead contacting/engaging the raised rim constitutes a locking mechanism for locking closure member 22 in its first position is reasonable. Further, although McMullin’s written specification does not discuss this bead or its function, one skilled in the art would have understood that the purpose of this bead would be to engage the rim to provide frictional resistance to maintain closure member 22 in the closed position covering aperture 18 until the user applies force to move it out of this position. Appellant also contends that the Examiner’s rejection is premised on a finding “that the alleged lock disclosed by McMullin is for a ‘second position’” and “contradicts the claim language, which calls for a lock in the ‘first’ position.” Appeal Br. 32. This argument is not persuasive. As discussed above, the bead on which the Examiner relies engages the rim to maintain closure member 22 in the position covering aperture 18 (i.e., the “first position” as set forth in claim 1, from which claim 8 depends). Appeal 2022-001011 Application 15/076,910 13 Moreover, the Examiner finds that this feature of McMullin is “a locking mechanism configured to lock at least one of the first cover and the second cover in the first position.” Final Act. 6. The Examiner’s awkward reference to the lock engaging a portion of the rim “with respect to a lock for the second position” in the subsequent parenthetical (id.) does not negate the Examiner’s finding, which is correct, as discussed above. For the above reasons, Appellant does not apprise us of error in the rejection of claim 8, which is persuasively articulated and supported by a preponderance of the evidence. Accordingly, we sustain the rejection of claim 8, and of claims 16, 27, 28, 38, 39, 41-43, 47, and 50, which fall with claim 8, as being unpatentable over McMullin and Bodum. Claims 11 and 19 In addressing the “sealing member” limitation of claims 11 and 19, the Examiner refers to “sealing members already provided in the above rejections.” Final Act. 6, 9. The only sealing members referred to previously in the Examiner’s rejections pertain to claims 7, 10, 15, and 18. Id. at 6, 8, 9. The Examiner appears to be relying on either gasket member 36 or the bottom surface of drinking member 20 of McMullin as the “sealing member.” See Final Act. 6, 8 (alluding to a sealing member at “32 and members adjacent”), and 9 (alluding to a “sealing member at bottom of second cover in fig 1 that closes second opening”); McMullin 4:31-32 (disclosing that, in the closed position shown in Figure 1, drinking member 20 seals first aperture 16), 5:5-8 (disclosing that closure member 22 includes gasket member 36 to cover protrusions 32 and 34 and provide a tight sealing of second aperture 18 and vent aperture 30); id. Figs. 1, 5. Appeal 2022-001011 Application 15/076,910 14 As Appellant correctly points out (Appeal Br. 33, 36), none of the elements of McMullin on which the Examiner relies form a seal “between the lid and the container,” as recited in claim 11, or “between the container and the lid,” as recited in claim 19. See Claims App. 3, 6. Accordingly, we do not sustain the rejection of claims 11 and 19 as being unpatentable over McMullin and Bodum. Claim 20 Claim 20 recites “a tab on the rim of the lid for facilitating removing the lid from a container.” Claims App. 6. The Examiner relies on Bodum for this feature. Final Act. 9 (“provided above in Bodum”). In particular, the Examiner finds that Bodum’s lid includes a locking mechanism and a “tab on the rim on top left side of fig 1, capable of performing the intended use of being for removing of the lid” and determines it would have been obvious to modify McMullin’s lid by providing such “locks/tab” “in order to enhance the access to the contents of the device while ensuring the device remains stowed in desired positions.” Final Act. 5. We agree with Appellant that “there is no tab on the rim shown on the left side of Figure 1 in Bodum.” Appeal Br. 37. Thus, we do not sustain the rejection of claim 20 as being unpatentable over McMullin and Bodum. Claims 21 and 29 Claims 21 and 29 recite a size transition between first and second portions of the container. Claims App. 6, 9. McMullin’s container 12 satisfies these limitations, even without modification in view of Bodum. As illustrated in Figures 8-10, McMullin’s container 12 is tapered and, thus, has a first portion (top portion) having a greater diameter than a second portion (bottom portion) with a size transition (middle portion) between the first and Appeal 2022-001011 Application 15/076,910 15 second portions. Thus, the Examiner’s reliance on Bodum for this feature is merely superfluous to the obviousness rejection. Nonetheless, the Examiner finds that Bodum discloses a “container with different portions and diameters as shown in fig 3 between middle opaque portion and transparent bottom portion” and determines it would have been obvious to modify McMullin’s container to provide the container shape taught by Bodum “to provide a gripping function.” Final Act. 8 (addressing claim 12), 9 (stating that the first and second portions and size transition are “[a]lready provided above in the rejection of claim 12”); see also id. at 11 (addressing claim 24), 12 (stating that the first and second portions and size transition have “already [been] rejected above in claim 24).3 Appellant submits that “there does not appear to be a size transition between the middle opaque portion and transparent bottom portion of Bodum” and, further, contends that the Examiner does not “explain how or why one of ordinary skill in the art would be motivated to modify McMullin in light of Bodum to include any size transition between a first portion and a second portion of the container.” Appeal Br. 39, 45. Figures 1-3, 5, and 6 of Bodum illustrate the opaque portion of the container having a larger outer diameter than the lower transparent portion. 3 Appellant asserts the Examiner’s explanation of the rejection of claim 21 on pages 29-31 of the Answer “constitutes a new ground of rejection.” Reply Br. 25. This assertion is in error, as the explanation provided in the Answer simply reiterates the Examiner’s findings and reasoning at page 8 of the Final Office Action. Moreover, any arguments that statements in the Examiner’s Answer should be designated as a new ground of rejection have been waived by Appellant’s failure to timely file a petition under 37 C.F.R. § 1.181. See 37 C.F.R. § 41.40(a). Appeal 2022-001011 Application 15/076,910 16 The transition from the smaller diameter of the lower transparent portion to the larger diameter of the opaque portion is a size transition between the first and second portions. Further, the Examiner reasons that it would have been obvious to incorporate this feature into McMullin to provide a gripping function (Final Act. 8, 11), as discussed above. Appellant does not address this reasoning or explain why it is deficient. For the above reasons, Appellant does not apprise us of error in the rejection of claims 21 and 29, which is persuasively articulated and supported by a preponderance of the evidence. Accordingly, we sustain the rejection of claims 21 and 29 as being unpatentable over McMullin and Bodum. Claims 22 and 30 Claims 22 and 30 depend from claims 21 and 29, respectively, and further recite that “an average outer diameter of the first portion of the container is greater than an average outer diameter of the second portion of the container.” Claims App. 6, 9. Appellant argues the rejections of these claims separately from claims 21 and 29, but the issues raised are substantially the same as those for claims 21 and 29. See Appeal Br. 40-41, 46-48. For essentially the reasons discussed above in addressing claims 21 and 29, Appellant’s arguments fail to apprise us of error in the rejection of claims 22 and 30. Accordingly, we sustain the rejection of claims 22 and 30 as being unpatentable over McMullin and Bodum. Claim 23 Claim 23 recites “a locking mechanism for maintaining the first cover in its first position by engaging the rim of the lid and for maintaining the first cover in its second position by engaging a tab on the rim of the lid.” Appeal 2022-001011 Application 15/076,910 17 Claims App. 7. Although the Examiner’s position here is not entirely clear, the Examiner appears to rely on the same “tab on the rim on top left side of fig 1 [of Bodum], capable of performing the intended use of being for removing of the lid” (Final Act. 5) addressed in the findings for claim 20. See Final Act. 9 (stating, in addressing claim 20, that the tab is “provided above in Bodum” and, in addressing claim 23, that the “tab on the rim of the lid” has “already [been] rejected above with Bodum”). As discussed above in regard to claim 20, we agree with Appellant’s statement on page 37 of the Appeal Brief that “there is no tab on the rim shown on the left side of Figure 1 in Bodum.” See Appeal Br. 42 (arguing that the rejection does not adequately explain how or why one of ordinary skill in the art would be motivated to modify McMullin in view of Bodum to arrive at the subject matter of claim 23, including a locking mechanism for maintaining the first cover in its second position by engaging a tab on the rim of the lid). Thus, the Examiner’s findings and reasoning are not adequate to establish that the subject matter of claim 23 would have been obvious. Accordingly, we do not sustain the rejection of claim 23 as being unpatentable over McMullin and Bodum. Claims 31-34 Claim 31 depends indirectly from claim 24 and further recites that “the raised edge around the entire periphery of the lid is sized and configured to engage a lip of a user and reduce spillage of liquid when dispensed from the drinking opening.” Claims App. 9. The Examiner finds that Bodum discloses a rim with a raised edge on the entire periphery of the lid and determines it would have been obvious to modify McMullin by providing a raised edge around the entire periphery of the lid to “enhance the Appeal 2022-001011 Application 15/076,910 18 pouring action.” Final Act. 11 (addressing claim 24). The Examiner further explains that “it is well known in the art that a rim with the raised edge around the entire periphery,” as taught in Bodum, “permits the user to have a larger as well [as] sloped and gradual surface that permits a more desired flow into the user[’]s mouth as well as a cavity from which liquid can be collected in case of unintentional escape.” Id. According to the Examiner, such a modification “is a clear improvement of McMullin” because McMullin’s “cavity is smaller and the exterior walls of the cavity are vertical [and, thus,] would not provide a more desired flow.” Id. Appellant argues that the Examiner “fails to provide any explanation whatsoever for modifying” McMullin in view of Bodum to meet claim 31. Appeal Br. 49. For essentially the reasons set forth above in discussing this modification in regard to claim 1, the Examiner’s articulated reason for making this modification has rational underpinnings. Appellant’s arguments fail to apprise us of error in the Examiner’s conclusion that the subject matter of claim 31 would have been obvious, which is persuasively articulated and supported by a preponderance of the evidence. Accordingly, we sustain the rejection of claim 31, and of claims 32-34, which depend from claim 31, and for which Appellant does not present any separate arguments, as being unpatentable over McMullin and Bodum. Claim 51 Claim 51 depends from claim 1 and further recites that “the first cover includes a locking mechanism for locking the first cover in its first position and maintaining the first cover in its second position.” Claims App. 13. The Examiner relies on the bead discussed above in regard to claim 8 that is at Appeal 2022-001011 Application 15/076,910 19 the tip of the first cover (closure member 22) as shown in McMullin’s Figures 5-7, particularly in Figure 5, where it is shown “engag[ing] with a portion of the rim with respect to a lock for the second position.” Final Act. 16-17. The Examiner’s description of this bead engaging a portion of the rim “with respect to a lock for the second position” does not coherently explain, nor is it apparent, how this bead (locking means) maintains the first cover (closure member 22) of McMullin in the second position (i.e., the position, such as in Figure 7, in which it allows access to the drinking opening (second aperture 18)). See Appeal Br. 51 (arguing this point). Accordingly, we do not sustain the rejection of claim 51 as being unpatentable over McMullin and Bodum. Obviousness-McMullin, Bodum, and Clare Claim 3 depends from claim 1 and further recites that “the vent opening is integrated with the drinking straw opening.” Claims App. 2. The Examiner finds that Clare teaches a vent opening (vent passageway 20) integrated with a second opening (liquid passageway 19). Final Act. 18. The Examiner determines it would have been obvious to further modify McMullin, as already modified in view of Bodum, in view of Clare “by integrating an additional third opening to the existing second opening by either moving such or adding another[,] in order to provide known venting functions for improved pouring.” Final Act. 18. Appellant argues, and we agree, that the Examiner’s finding that Clare’s vent passageway 20 is integrated with liquid passageway 19 is incorrect. Appeal Br. 52. Although both vent passageway 20 and liquid passageway 19 are defined within hollow stem 16, these passageways are Appeal 2022-001011 Application 15/076,910 20 not integrated with one another; they are separated from one another by partition wall 17. See Clare 1:43-53; Figs. 1, 3, 4. Thus, because the Examiner’s rejection of claim 3 as being unpatentable over McMullin, Bodum, and Clare is premised on an incorrect finding, we do not sustain it. Obviousness-McMullin, Bodum, and Lin In contesting the rejection of claims 13 and 14, Appellant relies solely on the arguments presented for claim 12. Appeal Br. 54. Appellant’s arguments fail to apprise us of error in the rejection of claim 12, for the reasons discussed above, and, likewise, fail to apprise us of error in the rejection of claims 13 and 14. Accordingly, we sustain the rejection of claims 13 and 14 as being unpatentable over McMullin, Bodum, and Lin. CONCLUSION The Examiner’s rejection of claims 2 and 34 under 35 U.S.C. § 112(b) is REVERSED. The Examiner’s rejections under 35 U.S.C. § 103 are AFFIRMED as to claims 1, 2, 6-10, 12-18, 21, 22, 24-39, 41-43, 45-47, 49, 50, 52-56, and 58-61 and REVERSED as to claims 3, 11, 19, 20, 23, and 51. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 2, 34 112(b) Indefiniteness 2, 34 1, 2, 6-12, 15-39, 41- 43, 45-47, 49-56, 58- 61 103 McMullin, Bodum 1, 2, 6-10, 12, 15-18, 21, 22, 24- 39, 41-43, 45-47, 49, 11, 19, 20, 23, 51 Appeal 2022-001011 Application 15/076,910 21 50, 52-56, 58-61 3 103 McMullin, Bodum, Clare 3 13, 14 103 McMullin, Bodum, Lin 13, 14 Overall Outcome 1, 2, 6-10, 12-18, 21, 22, 24-39, 41-43, 45- 47, 49, 50, 52-56, 58- 61 3, 11, 19, 20, 23, 51 TIME PERIOD FOR RESPONSE 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)(1)(iv). AFFIRMED IN PART