Ex Parte Apps

Patent Trial and Appeal Board

Feb 26, 2019

14636750 (P.T.A.B. Feb. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/636,750 03/03/2015
26096 7590 02/28/2019
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
William P. Apps
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.
9423 PUSA; 67080-482
PUS2
CONFIRMATION NO.
9670
EXAMINER
BRADEN, SHAWNM
ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
02/28/2019 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):
ptodocket@cgolaw.com
cgolaw@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM P. APPS
Appeal2018-002203 1
Application 14/636,750
Technology Center 3700
Before MURRIEL E. CRAWFORD, MICHAEL W. KIM, and
PHILIP J. HOFFMANN, Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal from the final rejection of claims 13-19 and 25-39.
We have jurisdiction to review the case under 35 U.S.C. §§ 134(a) and 6(b ).
The invention relates to a plastic container for liquids. Spec. ,r 1.
Claim 13 is illustrative:
13. A plastic beer keg liner assembly including:
1 The Appellant identifies Rehrig Pacific Company as the real party in
interest. Appeal Br. 1.
Appeal2018-002203
Application 14/636,750
a plastic liner including a neck portion, a body portion and
a shoulder portion between the neck portion and the body
portion, wherein the neck portion, the body portion and the
shoulder portion are integrally molded as a single piece of
plastic;
a valve assembly within the neck portion of the liner, the
valve assembly including a spring biasing a port member toward
an opening to close the opening; and
a head contact member adjacent the neck portion of the
liner for transferring axial load away from the neck portion of the
liner.
Appeal Br. 10 (Claims Appendix).
The Examiner rejected claims 16-18 under 35 U.S.C. § 112, second
paragraph, as indefinite.
The Examiner rejected claims 13-19 and 36-39 under
35 U.S.C. § I03(a) as unpatentable over Dunn (US 5,129,534, iss. July 14,
1992) and Wauters et al. (US 2010/0102071 Al, pub. Apr. 29, 2010)
("Wauters").
The Examiner rejected claims 25-35 under 35 U.S.C. § I02(b) as
anticipated by Dunn.
We AFFIRM-IN-PART.
ANALYSIS
Reiection under 35 USC § 112. Second Paragraph
Dependent claim 16 introduces the term "the retainer," even though
no retainer is recited prior to its introduction in claim 16 in the chain of
claims. The Examiner rejects claim 16, as well as claims 17 and 18 that
depend from claim 16, as indefinite because of a lack of antecedent basis for
"the retainer." Final Act. 2-3.
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Application 14/636,750
We are not persuaded by the Appellant's argument that the claim
meaning is "clear," because based on the claims and Specification, "the
retainer" actually, instead means the "head contact member" of claim 13.
Appeal Br. 3; see also Reply Br. 1.
The Specification describes that in one embodiment the head contact
member is a retainer. Spec. ,r 7. In addition, in describing Figure 1, the
Specification equates retainer with head contract member. Spec. ,r 29 ("axial
forces bear primarily upon the base of the container 12 on one side, with the
head bearing upon the retainer 20 (the 'head contact member') on the other
side.").
Because retainer is equated with head contract member only in one
embodiment, we are unpersuaded that the two terms are always equivalent,
as asserted by the Appellant. Because the plain text of the claims defies
convention by introducing a term for which there is no antecedent basis,
requiring reference to the Specification to attempt to understand what the
term means, and because the Appellant has apparently acquiesced to the
rejection by attempting to amend the claims, we sustain the rejection of
claims 16-18 as indefinite.
Reiection of Claims 13. 15. 16. and 18 under 35 USC § 103(a)
The Examiner finds that Dunn discloses the plastic liner, at Dunn's
bottle 12, including the neck portion at Dunn's opening 20, and the head
contact member, at Dunn's valve assembly 22, but fails to disclose the
claimed valve assembly. Final Act. 3--4. The Examiner finds the claimed
valve assembly in Wauters. Id.
We are unpersuaded by the Appellant's argument that Dunn's flanged
opening 20 is not integrally molded with the body of the container as a
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Application 14/636,750
single piece of plastic. Appeal Br. 5 (referencing id. at 4). Dunn discloses
that flange 62, which surrounds opening 20, is part of molded bottle 12.
Dunn col. 2 lines 32-36 ("upper end 16 has a central or axial flanged
opening 20 formed therethrough and mounting a conventional dispensing
valve assembly 22").
Because the Appellant has not shown error, we sustain the rejection of
claim 13 as obvious over Dunn and Wauters. We also sustain the rejection
of claims 15, 16, and 18 that were not argued separately.
Reiection of Claim 14 under 35 US.C. § 103(a)
Dependent claim 14 recites "wherein the head contact member
includes a skirt extending radially from the neck of the liner onto a shoulder
portion of the liner." The Examiner finds Dunn discloses the skirt at Dunn's
top lid/end cap 46. Final Act. 4.
We are persuaded by the Appellant's argument that Dunn's lid 46 is
not part of what the Examiner identifies as a retainer, as claimed. Appeal
Br. 6. Dunn's Figure 4 discloses that valve assembly 22 is a separate part
from top lid 46 of Dunn's, and thus is does not include top lid 46. 2
For this reason, we do not sustain the rejection of claim 14.
Reiection of Claims 17-19 under 35 US.C. § 103(a)
Dependent claim 1 7 recites "wherein the retainer includes an upper
retainer portion and a lower retainer portion, the upper retainer portion
removably connected to the lower retainer portion."
2 Although Dunn's Figure 4 has element 22 located essentially in the same
place as top lid 46, Dunn only describes element 22 as a valve assembly that
is inside of opening 20. We thus treat the presence of element 22 in Figure 4
to be in error.
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Appeal2018-002203
Application 14/636,750
The Examiner finds "the retainer ( threads of 22) includes an upper
retainer portion (top of 22) and a lower retainer portion (62), the upper
retainer portion (top of 22) removably connected to the lower retainer
portion (62)."
Dunn's flange 62, however, appears to be a molded portion of
bottle 12, because valve assembly 22 fits into it. See Dunn col. 2 lines 32-
36.
Therefore, we do not sustain the rejection of claim 1 7. We also do not
sustain the rejection of claims 18 and 19 that depend from claim 17.
Reiection of Claims 36-39 under 35 USC § 103(a)
Independent claim 36 recites an assembly comprising:
a plastic bottle including a rigid, generally cylindrical side
wall and a shoulder portion transitioning from the cylindrical
side wall to a neck portion;
a valve assembly within the neck portion of the plastic
bottle, the valve assembly including a port member biased
toward an opening to close the opening; and
a retainer secured to an outer surface of the neck portion
of the plastic bottle, the retainer securing the valve assembly to
the neck portion of the plastic bottle.
The Examiner finds the claimed valve assembly is "internal of'
Dunn's valve assembly 22, the claimed retainer is disclosed at Dunn's valve
assembly 22, and is secured to an outer surface of the neck portion of the
plastic bottle, the retainer securing the valve assembly to neck portion 20 of
the plastic bottle. Final Act. 5.
The Appellant argues valve assembly 22, which the Examiner calls
the claimed retainer, is not secured to an outer surface of a neck portion of
the bottle. Appeal Br. 6.
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Appeal2018-002203
Application 14/636,750
Dunn does not display in the figures or describe in the text how valve
assembly 22 is attached to bottle 12. Figure 1 appears to show valve
assembly 22 entirely within opening 20 in bottle 12, which is an inner, not
outer, surface of the opening. We thus must conclude that the Examiner
fails to adequately support the rejection, because it is not explicit or inherent
in Dunn that the valve assembly is secured on the outside of a bottle neck, as
claimed. For this reason, we do not sustain the rejection of claim 36, nor of
claims 37-39 that depend from claim 36.
Reiection of Claims 25-35 under 35 USC § 102(b)
As with independent claim 13, independent claim 25 recites an
assembly that includes three parts: a plastic liner (including a neck portion,
a body portion and a shoulder portion), a valve assembly within the neck
portion of the liner, and a retainer adjacent the neck portion. Claim 25
recites, unlike claim 13 's recitation about the retainer transferring load, that
"the retainer [is] secured to an outer surface of the neck portion of the liner,
the retainer securing the valve assembly to the neck portion of the liner."
The Examiner finds Figure 1 of Dunn discloses the plastic liner at
element 12, the retainer at element 22, and the valve assembly as part of
element 22. Final Act. 6 ("a retainer (22) adjacent the neck portion of the
liner, the retainer secured to an outer surface of the neck portion (20) of the
liner, the retainer securing the valve assembly (inside below 22) to the neck
portion of the liner."). Dunn describes element 12 as a "bottle," and
element 22 as "a conventional dispensing valve assembly." Dunn col. 2
lines 27-36.
However, in response to the Appellant's argument that the Examiner
is incorrectly associating Dunn's "conventional dispensing valve
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Application 14/636,750
assembly 22" as both the claimed retainer and valve assembly, the Examiner
asserts "Examiner is not calling the valve assembly 22 of Dunn both the
'valve assembly and the retainer securing the valve assembly' as applicant
implies. Examiner used the phrase, inside below 22, to describe the valve
assembly." Answer 4. In an annotated version of Dunn's Figure 1, the
Examiner indicates with an arrow that the retainer is actually the cross-
hatched shoulder part of the drawing just on either side of valve
assembly 22. Id.
The plain text of the rejection thus asserts that valve assembly 22 is
the retainer, and the claimed valve assembly is below valve assembly 22.
However, in Dunn's Figure 1, there is no separate element below valve
assembly 22. We interpret this to mean that the Examiner finds the claimed
valve assembly at Dunn's valve assembly 22.
The plain text of the Response to Argument is that the retainer is not
part of valve assembly 22, but instead is an un-numbered (in Fig. 1) structure
adjacent to valve assembly 22.
However, although Dunn's Figure 1 shows what appears to be an
upper shoulder and lower structure, where the lower structure is element 62,
Dunn describes that a "central opening surrounded by a short upstanding
flange 62 is provided through the dished central section 48 for the
accommodation and mounting of the valve assembly 22 in any appropriate
manner." Dunn col. 3 lines 24--27. Based on the exploded view of the keg
assembly in Dunn's Figure 4, it appears that the shoulder portion the
Examiner is identifying in Figure 1 is actually part of annular cuff 70, which
is assembled over flange 62, and is held down by straps on the outside of the
keg assembly. Id. Fig. 4. We discern nothing in Dunn, however, that
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indicates cuff 70 secures valve assembly 22, which is instead located within
opening 20 through bottle 12, and secured to the outer surface of flange 62
that is part of bottle 12.
Therefore, the Examiner fails to support adequately the rejection of
claim 25 as anticipated by Dunn, because nothing has been identified that
secures to an outer surface of the neck portion of the liner and also secures
the valve assembly to the neck portion. For this reason, we do not sustain
the rejection of claim 25 under 35 U.S.C. § 102(b). We also do not sustain
the rejection of claims 26-33 that depend from, and were rejected along
with, claim 25.
Reiection of Claims 34 and 35 under 35 USC § 102(b)
The Examiner rejects claims 34 and 35 as anticipated by Dunn. Final
Act. 6-7. However, claims 34 and 35 each depend, directly or indirectly,
from independent claim 13, which was rejected under 35 U.S.C. § 103(a)
over Dunn and Wauters, where Wauters alone was relied on for certain
claim limitations of independent claim 13. The rejection of dependent
claims 34 and 35 over Dunn alone is thus in error. For this reason we do not
sustain the rejection of claims 34 and 35 under 35 U.S.C. § 102(b).
DECISION
We affirm the rejection of claims 16-18 under 35 U.S.C. § 112,
second paragraph.
We affirm the rejection of claims 13, 15, 16, 18 under
35 U.S.C. § 103(a).
We reverse the rejection of claims 14, 17-19, and 36-39 under
35 U.S.C. § 103(a).
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Application 14/636,750
We reverse the rejection of claims 25-35 under 35 U.S.C. § I02(b ).
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED-IN-PART
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