Ex Parte Bezek et al

Patent Trial and Appeal Board

Mar 26, 2013

11609602 (P.T.A.B. Mar. 26, 2013)

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.
11/609,602 12/12/2006 Edward Anthony Bezek CFLAY.00406 1381
110933 7590 03/27/2013
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
EXAMINER
KIRSCH, ANDREW THOMAS
ART UNIT PAPER NUMBER
3781
MAIL DATE DELIVERY MODE
03/27/2013 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 ANTHONY BEZEK and
ADITYA VARANASI
____________________

Appeal 2011-000717
Application 11/609,602
Technology Center 3700
____________________

Before: WILLIAM V. SAINDON, JILL D. HILL, and
BEVERLY M. BUNTING, Administrative Patent Judges.

BUNTING, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-000717
Application 11/609,602

2
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
10. App. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The claims are directed to an overcap for a container having improved
fit. Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A container and overcap, comprising:
a hollow plastic container having an opening
comprising a rim, wherein an upper portion of said
rim is rounded and a lower portion of said rim is
essentially flat in crosssection;
a flexible, plastic, snap-on overcap that
removably fits over said rim of said container, said
cap comprising a base portion sized to cover said
opening of said container and a flange extending
essentially perpendicularly to said base portion,
wherein an inner surface of said flange contains a
circumferential ridge having a peak, wherein a face
of said ridge is essentially flat in cross-section so
that said face of said ridge seals against said lower
portion of said rim of said container, wherein said
flange contacts said container only at said lower
portion of said rim;
whereby said cap provides a seal to said
hollow plastic container.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
McLaughlin
Cargile
Julius
Martin
US 3,077,284
US 5,460,287
US 5,667,092
US 6,761,279 B1
Feb. 12, 1963
Oct. 24, 1995
Sep. 16, 1997
Jul. 13, 2004
Appeal 2011-000717
Application 11/609,602

3
REJECTIONS
The Examiner made the following rejections:1
Claims 1 and 5-7 stand rejected under 35 U.S.C §102(b) as being
anticipated by McLaughlin. Ans. 4.
Claim 2-4 stands rejected under 35 U.S.C §103(a) as being
unpatentable over McLaughlin in view of Cargile. Ans. 8.2
Claims 8 and 9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over McLaughlin. Ans. 7
Claim 10 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over McLaughlin in view of Julius. Ans. 8.

ANALYSIS
Anticipation Rejection
Claims 1 and 5
Appellants argue claims 1 and 5 as a group. App. Br. 5-8. We select
claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
Claim 1 defines an overcap for a container that includes a flange
portion that contacts the container only at the lower portion of the container
rim.
The Examiner found that McLaughlin discloses container (10) having
a rim (28), with a lower portion that is essentially flat in cross-section (32).

1 The rejection of claim 2-4 under 35 U.S.C. §103(a) as being unpatentable
over McLaughlin in view of Martin was withdrawn by the Examiner in the
Answer dated June 24, 2010. Ans. 3.
2 Appellants do not address this new ground of rejection in the Reply Brief.
Therefore the rejection of claims 2-4 under 35 U.S.C. § 103(a) is summarily
affirmed. See also Ans. 14 (stating that Appellants choose to maintain the
appeal after a new ground “by filing a reply brief”).
Appeal 2011-000717
Application 11/609,602

4
Ans. 4. Further, the Examiner found that McLaughlin discloses an overcap
(40) having a base portion (50) sized to cover the container opening and:
a flange (See Fig. 6) extending essentially perpendicularly to
said base portion, wherein an inner surface of said flange
contains a circumferential ridge (54) having a peak, wherein a
face (58) of said ridge is essentially flat in cross-section so that
said face of said ridge seals against said lower portion of said
rim of said container (column 2, lines 24 and 43), wherein said
flange contacts said container only at said lower portion of said
rim (at faces 32 and 58);whereby said cap provides a seal to
said hollow plastic container.
Ans. 4-5.
Appellants argue claim 1 requires that the flange contacts the
container only at the lower portion of the rim, and Figure 6 of McLaughlin
discloses “two separate contact points between the flange and rim.” App.
Br. 5. Appellants contend that the entire outer rim wall 48 of McLaughlin
corresponds to the flange disclosed by Appellants. App. Br. 7.
The Examiner annotated Figure 6 of McLaughlin (reproduced below)
to illustrate how the portion of the outer wall is considered to be the flange
extending perpendicularly to the base portion, and contacting the container
only at the lower portion of the rim. Ans. 11.
Figure 6 of McLaughlin is Reproduced Below:
App
App

“out
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Ans.
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anno
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In reply
er rim wal
erm flange
hment to a
11-12. Fu
not specif
e Examine
aughlin to
ification an
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4b and 5.
ed portion
the flange
tated Figu
00717
/609,602

Ann
Exam
to Appella
l 48”, the
to mean “
nother obj
rther, the
ically state
r does not
be part of
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ing from t
Reply Br
in Figure
contacts th
re 6 of Mc
otation of
iner Show
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Examiner
a rib or rim
ect” to de
Examiner
whether
consider t
the flange
show that
he upper s
. 2. Furthe
6 of McLa
e containe
Laughlin.
5
Figure 6 o
ing Flange

ent that M
notes relia
for stren
fine corres
indicates t
the flange
he section
. Ans. 12
the flange
urface 432
r, Appella
ughlin mu
r in the tw
Reply Br
f McLaug
Portion o
cLaughlin
nce on the
gth, for gu
ponding p
hat the lan
is connect
labeled a
. Appellan
436 encom
of the cap
nts mainta
st be cons
o location
. 5-6.

hlin By
f Cover.
calls its f
plain mea
iding, or f
ortions of
guage of
ed to the c
s 48 in FIG
ts assert t
passes th
430 as sh
in that the
idered the
s circled i
lange an
ning of
or
the cover
claim 1
over, and
. 6 of
hat their
e entire
own in
entire
flange and
n the
.

App
App

Repr

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Exam
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Figure 4
oduced Be
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We do n
ld be inclu
re 6 of Mc
the rim sec
e lack of l
r. Absent
e plain me
uiding, or
over that i
iner’s fin
wall 48 i
rdly facin
rd the cen
g horizont
mity of ca
iner had
00717
/609,602
of Appel
low:
notation o
mpared to
ot conside
ded as the
Laughlin,
tion label
anguage in
specific la
aning of t
attachmen
s secured
ding, Mc
s enlarged
g camming
ter of the c
al sealing
mming su
a sound ba
lants App
f Figure 6
Figure 4B
r the Appe
flange, in
as being p
ed as 48 w
claim 1 d
nguage in
he term “f
t to anther
over the ri
Laughlin d
to provide
surface 5
over, and
surface 58
rface 56”.
sis for find
6
lication an
of McLau
from App

llants’ arg
cluding th
ersuasive.
as not con
efining th
the claim,
lange” to m
object” to
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oes teach
an inward
6 which sl
also havin
which ex
McLaugh
ing that th
d Figure
ghlin by A
ellants’ D
ument tha
e portion l
The Exam
sidered pa
e flange as
the Exam
ean “a rib
define th
ntainer. I
that “the l
ly facing
opes upwa
g a genera
tends outw
lin col. 2,
e enlarge
6 of McL
ppellant
rawings.
t the entire
abeled at 4
iner corr
rt of the fl
connecte
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or rim fo
e relevant
n support
ower porti
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rdly and i
lly flat up
ardly from
ll. 33-45.
d lower po
aughlin ar
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8 of
ectly found
ange based
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rly relied
r strength,
portion of
of the
on of the
ving an
nwardly
wardly
the uppe
Thus, the
rtion of th
e

r
e
Appeal 2011-000717
Application 11/609,602

7
outer wall of McLaughlin is a flange that contacts the container only at the
lower portion of the rim.3
As such, we sustain the rejection of claims 1 and 5 under 35 U.S.C
§102(b).
Claims 6-7
Appellants argue claims 6 and 7 together as a group. App. Br. 8-9.
We select claim 6 as representative. Appellants misapprehended the
rejection and provided arguments based on obviousness grounds. Id. The
Examiner correctly noted that McLaughlin is applied to claim 6 (and 7) as a
rejection under 35 U.S.C. § 102(b). Ans. 12. Appellants have not provided
any argument persuasively apprising us of error in the Examiner’s findings
discussed with respect to these claims. As such, we sustain the rejection of
claims 6 and 7.

Obviousness Rejections
Appellants do not separately argue the patentability of claims 8, 9, and
10 under 35 U.S.C. § 103(a) over Mclaughlin, but rather grouped these
claims together with the anticipation rejection of claim 1. App. Br. 7. As
discussed above, we are not apprised of error in the Examiner’s rejection of
claim 1. Therefore, we sustain the rejection of claims 8, 9, and 10 under 35
U.S.C. § 103(a) as being unpatentable over McLaughlin.

3 In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990) (“The elements must be
arranged as required by the claim, but this is not an ipsissimis verbis test”).

Appeal 2011-000717
Application 11/609,602

8
DECISION
The rejection of claims 1 and 5-7 under 35 U.S.C §102(b) is affirmed.
The rejection of claim 2-4 under 35 U.S.C §103(a) is affirmed.
The rejection of Claims 8 and 9 under 35 U.S.C. § 103(a) is affirmed.
The rejection of Claim 10 under 35 U.S.C. § 103(a) is affirmed.
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) (2009).

AFFIRMED

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