Brown, Craig E. et al.

Patent Trials and Appeals Board

Feb 28, 2020

14120758 - (D) (P.T.A.B. Feb. 28, 2020)

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.
14/120,758 06/24/2014 Craig E. Brown 7991 1653
77083 7590 02/28/2020
Paul M. Denk
763 South New Ballas
Ste. 305
St. Louis, MO 63141
EXAMINER
MELARAGNO, MICHAEL
ART UNIT PAPER NUMBER
3754
MAIL DATE DELIVERY MODE
02/28/2020 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 CRAIG E. BROWN and ROBERT J. BROWN

Appeal 2019-004172
Application 14/120,758
Technology Center 3700
____________

Before MICHAEL J. FITZPATRICK, WILLIAM A. CAPP, and
RICHARD H. MARSCHALL, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final decision rejecting claims 11, 16, and 17. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.

1 Appellant is the “applicant” under 37 C.F.R. § 1.42(a).
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STATEMENT OF THE CASE
The Specification
The Specification “relates to a range of proportions for a vent and a
pouring aperture working in combination to fully vent a container in a
fashion that is complete, continuous, non-leaking, and without aerating and
contaminating the liquid.” Spec. 3:2–4.
Additionally, the vent provides a positive pressure in the
container to assist in promoting release of the liquid on demand.
This disclosure further describes a vent for containers to prevent
contamination of liquid in the container. More particularly, this
disclosure relates to a vent that prevents the creation of a vacuum
inside the container, including containers for liquor, wine, sports
drinks, rehydration drinks, water and cola, and other liquids. The
disclosure prevents introduction of air into the liquid when
poured, thus preventing oxidation and other untoward reactions
with the liquid of the container, which alter the taste and quality
of the liquid in the container when dispensed.
Id. at 3:4–12.
The Claims
Claims 11, 16, and 17 are rejected. Final Act. 1. No other claims are
pending. Id. Claim 11 is illustrative and reproduced below.
11. A container venting its interior to the atmosphere
and resisting formation of a vacuum when the container is
inverted to dispense a liquid therefrom, said container is a
sports bottle, the container comprising:
the container having an interior and a neck for the
admission of liquid into the interior of the container for usage,
the container having a closure upon its neck, the closure being
an external threaded closure, the closure having an upper
exterior surface having a vent aperture and a spout aperture
provided therethrough and a lower interior surface;
an internal venting tube integral with the lower interior
surface and in communication with the vent aperture for
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preventing formation of a vacuum within the inverted container
having an applied liquid and preventing leakage of liquid when
the container is used for dispensing its liquid, the internal
venting tube being straight and having a first end and a second
end;
an internal accepting flange integral with the lower
interior surface of said closure and having a frusto-conical
interior shape and an annular curved recess formed within said
frusto-conical interior shape of said flange, the internal
accepting flange being concentric with the internal venting
tube;
the first end of the internal venting tube having an
aperture in communication with the vent aperture and the
second end of the internal venting tube having an aperture with
the aperture of the first end and the aperture of the second end
being collinear with each other;
said closure, said internal venting tube, and said internal
accepting flange all being formed as one piece;
a venting reservoir for connection to the internal
accepting flange and positioned within the container, the
venting reservoir having a superior end aspect that locates
proximate the closure, and an opposite inferior aspect, for
locating proximate the bottom of the container, the venting
reservoir having a proximal first end and an opposite second
end projecting sufficiently downwardly into the container so
that upon inversion of the container the second end extends
above the liquid therein, the venting reservoir having a detent
proximate its superior end aspect and adapted for pressure fit
insertion into the curved annular recess of the internal accepting
flange, the proximal first end being beveled inwardly from the
detent to the superior end aspect to match the frusto-conical
interior shape of the accepting flange to secure the venting
reservoir within the accepting flange;
the combination of the internal venting tube and the
venting reservoir provides for a double venting of the contents
of the container during its usage and application;
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wherein said venting reservoir is also pressure detachable
from the internal accepting flange;
wherein the internal venting tube and the venting
reservoir segregates air from any liquid in the container so as to
minimize aeration within the container since no suction is
required to dispense the liquid from the container during its
usage;
a drinking spout provided upon and extending through
the closure and in communication with the spout aperture, the
drinking spout provided for liquid to flow out of the container
when it is inverted, and the drinking spout having a liquid
aperture outwardly of the spout aperture, and extending
substantially about the closure of the container, and the liquid
aperture being in communication with the liquid within the
container such that when inverted the liquid may be dispensed;
and
the drinking spout provided upon the closure and
arranged lateral of the closure in its connection, and the venting
aperture arranged diametrically and spaced from the spout
aperture and the spout as locating through the closure for the
container, such that when the container is inverted, and the
liquid is dispensed from the container, the venting reservoir and
its second end extending towards the bottom of the container
will more quickly extend above the level of the liquid in the
inverted container to accelerate the venting of air into the
container during the consumption of its contained liquid.
Appeal Br. 21–22.
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The Examiner’s Rejections
The following rejections are before us:
1. claim 11, under 35 U.S.C. § 112(a), as the Specification lacks a
written description therefor (Final Act. 2);
2. claim 11, under 35 U.S.C. § 103, as unpatentable over Rees,2
Brown,3 and Holmes4 (id. at 3); and
3. claims 16 and 17, under 35 U.S.C. § 103, as unpatentable over
Rees, Brown, Holmes, and Manganiello5 (id. at 5).
DISCUSSION
Rejection 1
Claim 11 recites “wherein said venting reservoir is also pressure
detachable from the internal accepting flange.” Appeal Br. 22. The
Examiner rejected claim 11, pursuant to 35 U.S.C. § 112(a), because “[t]he
specification is silent [as] to the term ‘pressure detachable’ nor does it
describe or give an example of a reservoir that is ‘pressure detachable’ from
an internal accepting flange.” Final Act. 2.
Appellant does not challenge the rejection of claim 11 under 35
U.S.C. § 112(a) (or its predecessor statute, which was cited by the
Examiner). See Appeal Br. 13 (identifying the grounds of rejections to be
reviewed on appeal and not including Rejection 1); see also id. at 14–19

2 US 2008/0099422 A1, published May 1, 2008 (“Rees”).
3 US 5,779,071, issued July 14, 1998 (“Brown”).
4 US 4,423,893, issued Jan. 3, 1984 (“Holmes”).
5 US 6,607,092 B2, issued Aug. 19, 2003 (“Manganiello”).
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(“Argument” section of Appeal Brief presenting arguments only in relation
to Rejections 2 and 3).6
Accordingly, we summarily affirm Rejection 1.
Rejection 2
The Examiner found that Rees discloses substantially the subject
matter of claim 1 except for: (1) a venting reservoir connected to an
accepting flange; and (2) an internal accepting flange having a frusto-conical
interior shape or the proximal first end of the venting reservoir being
beveled inwardly from a detent to a superior end to match the frusto-conical
interior shape of the accepting flange. Final Act. 3–5 (citing Rees Figs. 5A–
5B). The Examiner relies on Brown and Holmes, respectively, for teaching
these additional limitations. Id. at 4–5 (citing Brown Figs. 10–11; citing
Holmes 3:65–4:3).
The Examiner made the following conclusions:
It would have been obvious to one with ordinary skill in the art
at the time of the invention to modify the Rees [container] as
taught by Brown to include an accepting flange and a large cross-
sectional area reservoir concentric with Rees’ vent tube to more
easily accommodate liquid trapped in the lower portion of the
reservoir (col. 5, lines 35–37) to prevent liquid [being] trapped
in the reservoir when the container is inverted (col. 5, lines 45–

6 In the “Summary of Claimed Subject Matter,” the Appeal Brief asserts that
“prior patents of the inventors, such as patent No. 5,779,071,” i.e., Brown,
explain that “the venting reservoir is also pressure detachable from its
internal accepting flange 7, through disengagement of the detent 19b, from
within the circumferential groove 77.” Appeal Br. 11. However, Appellant
does not show that any such patent has been incorporated by reference into
the Specification. Id. Nor does Appellant provide a citation to the alleged
explanation of the “pressure detachable” feature. Id.
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49) and therefore providing a double venting of the contents
during its usage.
It would also have been obvious to one with ordinary skill
in the art to make the closure, venting tube and flange as one
piece since it has been held that forming in one piece an article
which has formerly been formed in multiple pieces and put
together involves only routine skill in the art. In re Larson, 340
F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965).
In regards to the closure’s threads being “internal” or
“external”, Rees discloses that the closure is threaded onto the
neck of the container and it would have been obvious to one with
ordinary skill in the art to reverse the threads since it has been
held that a mere reversal of parts is well within the ambit of one
skilled in the art.
. . . It would have been obvious to one with ordinary skill
in the art at the time of the invention to modify the combination
as taught by Holmes to taper the mating surfaces to produce a
reliable, fluid tight seal between the male and female members
(col. 3, line 65–col. 4, line 3).
Id.
Appellant’s arguments are presented under a single heading and
bounce around between concepts. Appeal Br. 14–19. Accordingly, it would
not make sense to address them as sequentially presented. We instead group
and address Appellant’s arguments below by type.
Appellant devotes much of its Appeal Brief to establishing a general
superiority of its claimed invention. For example, Appellant argues:
[T]he invention is directed towards a structure that provides for
very quick and facile removal of its venting structure, so that the
bottle, its collar, and the venting structure, can be easily cleaned
out, and then simply reassembled through the pressure fitting of
its various components together, to form the venting structure.
Id. at 14.
[T]he further uniqueness of the structure of this invention, as
claimed, is that the entire type of double venting structure is
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actually a single piece vent structure, that is used in combination
with an integral collar, and applied to a sports bottle, primarily
through the use of its uniquely formed closure 5.
Id. at 14–15.
[A]ll one needs to do is to pressure fit the reservoir 6 into the
flange 7, so that its detent engages, and the sports bottle is ready
for application and usage. Likewise, when the container is
depleted of its liquid, all one needs to do when cleaning the
assembly is simply to remove the collar, and then use pressure to
detach the reservoir 6 from its flange, and the entire assembly
can be immediately cleaned.
Id. at 15. None of those arguments is relevant to the legal conclusion of
obviousness, which is based on underlying facts, including: (i) the scope
and content of the prior art, (ii) the differences between the prior art and the
claimed invention, (iii) the level of ordinary skill in the field of the
invention, and (iv) any relevant objective considerations of nonobviousness
that are presented. Graham v. John Deere, 383 U.S. 1, 17–18 (1966)); see
also MobileMedia Ideas LLC v. Apple Inc., 780 F.3d 1159, 1167 (Fed. Cir.
2015), cert. denied, 136 S. Ct. 270 (2015) (An additional underlying fact is
whether there was a reason to combine prior art teachings.).
Appellant also devotes a good portion of its arguments to
highlighting differences between individual prior art references and the
claimed invention. For example, Appellant argues:
[The Brown] nursing bottle [is] not a sports bottle, required six
components to provide for assembling of its nursing bottle,
including the bottle, its reservoir tube, its vent tube, a vent insert,
a threaded collar, and a nipple, all of which had to be assembled
together to complete the shown nursing bottle. And, trying to
clean the shown nursing bottle required the disassembly of all of
these six components, for individual cleansing, and then
reassembled through threaded engagement, for usage.
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. . . [T]he structure of this current invention is entirely
different from what is shown and described in the earlier Brown
patent, as relied upon so heavily by the examiner.
Appeal Br. 14.
The uniqueness of [Applicant’s] device is that the closure
5 has all of these structures integrally formed within its molded
assembly, such as its flange, the vent tube, which are all molded
into place within the structure.
Id. at 15.
The current invention is really just a three part assembly, the
collar, and its reservoir tube, and its bottle, and nothing more.
This is quite a different structure from what is shown or
described in the previous [Brown] patent.
Id. at 16. None of those arguments is relevant to the Examiner’s rejection,
which concedes differences exist between individual references and the
claimed invention. See Final Act. 3–5 (rejecting claim 11 as obvious over
Rees as modified in view of Brown and Holmes); see also In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.”).
Appellant also argues that the prior art includes additional unclaimed
features. See, e.g., Appeal Br. 16 (“[Rees] has far more structure set forth in
its disclosure, as can be seen in its FIG. 1, and also its FIG. 5a, many of
which are just not required in Applicants’ invention.”), 17 (“Rees . . .
requires a check valve, to make it work.”), 18 (“The previous Brown patent,
had to use a separate insert 714, just like Rees requires with his flanged
insert 28, while none of these components are required for the current
invention.”). These arguments are not commensurate with the scope of the
Examiner’s rejection, in which the Examiner concluded, among other things:
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“It would also have been obvious to one with ordinary skill in the art to
make the closure, venting tube and flange as one piece since it has been held
that forming in one piece an article which has formerly been formed in
multiple pieces and put together involves only routine skill in the art.” Final
Act. 4 (citing In re Larson, 340 F.2d 965, 968 (CCPA 1965)). Further, the
argument about Rees requiring a check valve is not commensurate with the
scope of claim 11, which does not prohibit the same. Indeed, dependent
claims 16 and 17 explicitly require “a check valve.”
Appellant also argues that claim 11 is nonobvious because
“throughout all that time[, since Brown issued in 1998,] nobody gave any
thought to the reduction of components, making it far more simple for its
assembly and disassembly during usage, and for use in the sports field.”
Appeal Br. 17. Appellant goes so far as to describe this fact as its “best
evidence” of non-obviousness. Id. at 18 (“As stated, the best evidence as to
how this current invention is not obvious to one skilled in the art is to
recognize that the inventors of the [Brown] patent took an additional fifteen
years to come up with this new assembly.”). There is no legal authority to
support the notion, implicit in Appellant’s argument, that a lack of
anticipation proves non-obviousness, no matter how long the claimed
invention went unanticipated.
Appellant also argues that the Final Action does “not explain how a
person of ordinary skill in the art would have been motivated to combine a
tapered thread form of Holmes” to further modify Rees/Brown. Appeal
Br. 18. However, the Final Action explains that the skilled person would
have done this “to produce a reliable, fluid tight seal between the male and
female members.” Final Act. 5 (citing Holmes 3:64–4:3). And the cited
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portion of Holmes explicitly teaches the skilled person that its tapered thread
form “is well adapted for use in many other applications where it is desirable
to produce a reliable, fluid tight seal between the tapered threads of a male
and female member.” Holmes 3:66–4:3.
Appellant also argues that “Rees requires sucking by the child in order
to obtain any entrance of air into its container 16, which is not required from
the current invention, since the container of the current invention is double
vented.” Appeal Br. 16. This argument is not commensurate with the scope
of claim 11. Although claim 11 does not require sucking as argued by
Appellant, claim does not prohibit sucking. Claim 11 recites that “the
internal venting tube and the venting reservoir segregates air from any liquid
in the container so as to minimize aeration within the container since no
suction is required to dispense the liquid from the container during its
usage.” Appeal Br. 22. With respect to this argument, the Examiner
responded that “Rees discloses in ¶ [0006] that his invention is novel
because it functions at very low negative pressures, which would result
when pouring the contents by inverting the container and not only by
sucking the contents out by the user.” Ans. 4; see also Final Act. 7 (“Rees
discloses in ¶ [0006] that his invention . . . functions at very low negative
pressures.”). Appellant did not file a Reply Brief and, thus, has not rebutted
the Examiner’s finding, which is supported by the cited evidence.
For the foregoing reasons, we affirm Rejection 2.
Rejection 3
Appellant addresses the separate rejection of claims 16 and 17 (i.e.,
Rejection 3) but not under a separate heading as required. See Appeal Br.
18–19; 37 C.F.R. § 41.37(c)(1)(iv) (“Each ground of rejection contested by
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appellant must be argued under a separate heading.”). Accordingly, we need
not consider those arguments, which in any event are not persuasive.
We affirm Rejection 3.
SUMMARY
Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
11 112(a) Written
Description
11
11 103 Rees, Brown,
Holmes
11
16, 17 103 Rees, Brown,
Holmes,
Manganiello
16, 17
Overall
Outcome
11, 16, 17
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