Ex Parte Blake

Patent Trial and Appeal Board

Jul 28, 2014

11815943 (P.T.A.B. Jul. 28, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte GRAEME ASHLEY BLAKE
____________________

Appeal 2012-006533
Application 11/815,943
Technology Center 3700
____________________

Before: JOHN C. KERINS, STEFAN STAICOVICI, and
MICHAEL L. WOODS, Administrative Patent Judges.

WOODS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Graeme Ashley Blake (“Appellant”) seeks our review under 35 U.S.C.
§ 134 of the final rejection of claims 1–4, 6, 7, 9, 10, and 12–23. Appeal Br.
5. Claims 5, 8, and 11 have been cancelled. Id. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
Appeal 2012-006533
Application 11/815,943

2
CLAIMED SUBJECT MATTER
The Appellant’s invention is directed to a drinking vessel adapted to
engage with and seal the opening of a bottle. Spec. 2, ll. 2–7. Claims 1, 12,
and 21 are independent. Appeal Br., Clm. App. Claim 1 is illustrative and
is reproduced below.
1. A drinking vessel for a liquids packaging product, the
drinking vessel being formed of two parts,
a first part of said two parts forms a body of the drinking
vessel, and
a second part of said two parts forms a base of the
drinking vessel and is configured to close and seal the liquids
packaging product,
and the drinking vessel is formed by joining the body of
the drinking vessel to the base of the drinking vessel and
forming a leak resistant union between the body of the drinking
vessel and the base of the drinking vessel,
and the base of the drinking vessel includes a frangibly
linked portion which is located inside the body of the drinking
vessel when the union is formed between the body of the
drinking vessel and the base of the drinking vessel,
and the frangibly linked portion is adapted to (a) engage
with the liquids packaging product when the drinking vessel is
fitted to the liquids packaging product to seal the liquids
packaging product, and to (b) remain with the bottle when the
drinking vessel is subsequently removed from the liquids
packaging product.

THE REJECTIONS
The Examiner rejected claims 1–4, 6, 7, 9, 10, and 12–23 under 35
U.S.C. § 103(a) as being unpatentable over Vinsinglz (WO 2005/009853
Appeal 2012-006533
Application 11/815,943

3
A1, published Feb. 3, 2005),1 in view of Montgomery (US 5,927,527, issued
July 27, 1999) and Allora (US 6,398,050 B1, issued June 4, 2002). Answer
4.
ANALYSIS
In rejecting claim 1, the Examiner determines, inter alia, that one of
ordinary skill in the art at the time of the invention would have found it
obvious to modify the drinking vessel 43 of Vinsinglz with the container
assembly 10 taught by Allora “so that connection between the parts is harder
to access, thereby improving the seal of the drinking vessel and since it has
been held that rearranging parts of an invention involves only routine skill in
the art.” See Answer 4–5. With particular regard to Vinsinglz, the
Examiner finds that Vinsinglz teaches a drinking vessel 43 adapted to seal
bottle 41; the vessel 43 includes a first part (cup portion)2 61 and a second
part (base portion) 45 connected to the cup portion 61, wherein the
connection arrangement includes tabs 79 and groove 81 on an exterior of
cup portion 61. Id. at 4 and 7.

1 Vinsinglz Limited is listed as the applicant in this reference, and is how the
Examiner and Appellant have identified the reference during prosecution.
The named inventor is Graeme Ashley Blake, the Appellant in this Appeal.
2 Parenthetical nomenclature refers to Vinsinglz.
App
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Answer 7.
Figure 1

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/815,943
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Appeal 2012-006533
Application 11/815,943

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Figure 1 depicts a perspective view of Allora’s bottle-shaped
container 12 with its two opposed end caps 14 and 16.
In rejecting the claims, the Examiner explains:
One of ordinary skill in the art would find it obvious to
substitute the connection arrangement of Vinsinglz (79, 81 on
an exterior of the cup) with that taught by Allora (32, 24 on an
interior) in order to make the connection harder to tamper. The
connection would be harder to tamper with since the connection
points could not be freely accessed by a user and if the
connection points were accessed they would be visible to a
user.
Answer 7 and 8 (emphasis added).
In response to the Examiner, the Appellant contends that “[t]he
proposed modification would require removal of key structures of
VINSINGLZ . . . [and] the modification would not have made VINSINGLZ
more resistant to tampering.” Reply Br. 2. According to the Appellant,
when substituting Vinsinglz’s connection with that of Allora’s, as the
Examiner proposes, “plug 65 would have to be completely removed, so that
the base 45 seals the cup 61 (and perhaps also the bottle 41).” Id. at 3.
We agree with the Appellant for the following reasons.
First, it is unclear from the record how the teachings and disclosures
of Allora are being applied by the Examiner to modify the drinking vessel 43
taught by Vinsinglz. Specifically, it is not clear how the Examiner is
proposing to substitute the external connection 79, 81 of Vinsinglz for the
internal connection 24, 32 of Allora, while taking into consideration
Vinsinglz’s integral closure plug 65. The substitution of Vinsinglz’s
“connection arrangement” 79 and 81 with Allora’s “thread assembly” 24 and
32 would require the removal or significant alteration of Vinsinglz’s integral
closure plug 65 for sealing cup 61. See Vinsinglz Figs. 6, 8A, and 9A. In
Appeal 2012-006533
Application 11/815,943

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this case, we agree with the Appellant that the Examiner’s proposed
substitution would result in base 45 and connection 79, 81 sealing cup 61.
See Reply Br. 3. As noted by Appellant, it is not clear whether “plural tabs
79 and groove 81 are suitable for sealing liquid.” Id. at 4.
Second, the proposed modification does not “make the connection
harder to tamper,” as suggested by the Examiner. Answer 8. If the proposed
modification would render the prior art invention being modified
unsatisfactory for its intended purpose, then there is no suggestion or
motivation to make the proposed modification. In re Gordon, 733 F.2d 900
(Fed. Cir. 1984).
Vinsinglz explains that tampering is the addition of harmful drugs or
alcohol to the bottle’s contents, unbeknownst to the consumer. See
Vinsinglz 2, ll. 1–3. Although the Appellant’s current application is directed
towards improving the tamper-evident seal taught and disclosed by
Vinsinglz, we find no improvement in tamper resistance by relocating
“connection points” 79 and 81, as proposed by the Examiner. Spec. 1, ll. 6–
23 and Answer 7 and 8. In particular, the contents of Vinsinglz’s bottle 41
cannot be tampered with by simply removing base 45 from cup 61 through
the manipulation of “connection points” 79 and 81. See Vinsinglz 3, l. 14, 4,
l. 20, and Figs. 6, 8A, and 9A. Because the bottle’s 41 closure plug 65 is
integral with the cup 61, the cup 61—and not the base 45—must be
removed to open the bottle 41 and before tampering can occur. Id. Thus, the
reason proffered by the Examiner to modify the teachings of Vinsinglz, i.e.,
improving the seal of the drinking vessel, appears to already be adequately
performed by the bottle and cup assembly of Vinsinglz. As such, absent
hindsight, we fail to see why one having ordinary skill in the art would have
Appeal 2012-006533
Application 11/815,943

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been led by the teachings of Allora to modify Vinsinglz’s bottle and cup
assembly in the manner claimed. See In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006).
Lastly, we note that the Examiner’s use of the teachings of
Montgomery does not remedy the deficiencies of Vinsinglz and Allora, as
described supra.
For the foregoing reasons, we do not sustain the rejection under 35
U.S.C. § 103(a) of claim 1 as unpatentable over Vinsinglz, Montgomery,
and Allora.
The rejection of claims 2–4, 6, 7, 9, 10, and 12–23 is based on the
same rationale relied on with respect to claim 1. Therefore, the rejection of
claims 2–4, 6, 7, 9, 10, and 12–23 as being unpatentable over Vinsinglz,
Montgomery, and Allora is also not sustained.

SUMMARY
The Examiner’s decision to reject claims 1–4, 6, 7, 9, 10, and 12–23 is
reversed.

REVERSED

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