10799114 (B.P.A.I. Jan. 25, 2012)

Ex Parte Bloom et al

Board of Patent Appeals and InterferencesJan 25, 2012

10799114 (B.P.A.I. Jan. 25, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte OWENS-ILLINOIS CLOSURE INC. __________ Appeal 2010-006061 Application 10/799,114 Technology Center 3700 ___________ Before: RICHARD E. SCHAFER, JAMESON LEE, and SALLY G. LANE, Administrative Patent Judges. LEE, Administrative Patent Judge. DECISION ON APPEAL Owens-Illinois Closure Inc. (“Appellant”), the real party in interest, appeals from a final rejection of claims 1-12. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal 2010-006061 Application 10/799,114 - 2 - THE PRIOR ART The Examiner relies on the following references: Curry US 4,548,329 Oct. 22, 1985 Kamath US 5,320,234 Jun. 14, 1994 Przytulla US 5,915,579 Jun. 29, 1999 Ma US 6,112,923 Sep. 5, 2000 THE REJECTIONS ON APPEAL Claims 1-4 and 6 were finally rejected under 35 U.S.C. § 102(b) as anticipated by Kamath. Claims 1, 3-5, and 7 were finally rejected under 35 U.S.C. § 102(b) as anticipated by Przytulla. Claims 5 and 6 were finally rejected under 35 U.S.C. § 103(a) as obvious over Przytulla. Claims 1, 3-5, and 7 were finally rejected under 35 U.S.C. § 102(b) as anticipated by Ma. Claims 2 and 12 are newly rejected under 35 U.S.C. § 102(b) as anticipated by Ma. Claims 8 and 9 were finally rejected under 35 U.S.C. § 103(a) as obvious over Ma. Claims 10 and 11 were finally rejected under 35 U.S.C. § 103(a) as obvious over Ma and Curry. THE INVENTION Appellant discloses a tamper-resistant screw closure (i.e., screw cap) that is more easily withdrawn from the mold used to form the closure. An example of the closure is shown in Figs. 5 and 8, reproduced below. Appe Appl below wing 9:10 slip o (Id.) spec al 2010-00 ication 10/ . (Spec. s 58 are p ). Tilting ut of the t . The mea ification, a Each wi surface o angle 60 as viewe “negativ the injec deforma 6061 799,114 6:9-13). W ulled leftw the wings ight spaci ning of “c s follows ng 58 is fle f band 54 (FIG. 8) w d from ins e” tilt ang tion mold tion or dis hen the c ard and up 58 counter ng between ountercloc (Spec. 6:9 xibly and along a li ith respe ide of the s le 60 facili core witho tortion of w - 3 - underlyin 50 (as de 7). As are attach “counter losure is u ward with clockwise the mold kwise” an -13): resiliently ne that is a ct to the ax kirt. This tates remo ut substan ings 58[. F view o cutout a tamp (Spec. is an ex showin g the left linieated i shown by ed to the clockwise nscrewed reference allows the s’ wing-fo gle is indi connected t a counte is 62 of cl countercl val of the tial perma ] ig. 5 is a f the closu showing w er-resistan 4:2-3; 6:6 panded cu g the wing section 8 o n Fig. 5). Fig. 8, th band 50 at ” angle 60 from its m to Fig. 8. m 58 to m rming pro cated in th to the inn rclockwis osure skir ockwise o closure fro nent perspectiv re with a ings 58 o t band 50. -7). Fig. 8 tout view s 58 f the band (Spec. 4:6 e wings 58 a explained old, the (8:16- ore easily jections. e er e t 36, r m e f , - Appeal 2010-006061 Application 10/799,114 - 4 - ANALYSIS I. § 102(b) Rejections Claims 1-7 and 12 were rejected under 35 U.S.C. § 102(b). Claims 1 and 7 are the only independent claims. In three separate rejections, claims 1 and 7 were rejected as anticipated by Kamath, Przytulla, and Ma. We now address these rejections collectively. Using the same exact language emphasized above, claims 1 and 7 each require a tamper band with “counterclockwise” wings. Particularly, claims 1 and 7 each require a tamper band with “said wings being flexibly resiliently1 connected to said inner surface of said band along lines that are disposed at a counterclockwise angle with respect to an axis of said skirt as viewed from inside said skirt.” Claims 2-20 respectively depend from claim 1 or claim 7 and, accordingly, incorporate this limitation. The meaning of “counterclockwise” in light of the specification is clear. In the context of Fig. 8, the specification states that each wing 58 is disposed at a counterclockwise angle 60 with respect to the axis 62 of the closure skirt 36 “as viewed from inside of the skirt.” (Spec. 6:9-11). Thus, “counterclockwise” means that the wings tilt left of vertical when viewed from inside of the closure’s skirt and with respect to the closure’s orientation (i.e., both the viewer and the closure are oriented right-side up). That is, if one could stand up inside of the closure and look out toward the skirt, he or she would view the wings 58 as leaning leftward. 1 Claim 7 recites the wings as “resiliently flexibly” connected, not “flexibly resiliently” connected. We find this difference inconsequential. Appe Appl has n “cou the E clock argu wing alon the c Figu at a c “The surfa closu 9:9- wing al 2010-00 ication 10/ For each ot identifi nterclockw xaminer i wise angl ment is pe Regardin s 28 [are] g lines tha losure skir re 1, repro lockwise Regardin flexible w ce of the t re skirt as 14). In lig s 34, we f 6061 799,114 of the rej ed a prior ise” wing nstead poi e or parall rsuasive. g Kamath connected t are dispo t as viewe duced belo angle, as a g Przytull ing eleme amper ban viewed fr ht of Przyt ind that Pr ections, Ap art teachin s. (Brief 7 nts to prio el to a clos ’s Figure to the ins sed at a clo d from ins w, confirm sserted by a’s Figure nts 34 in P d 14 along om inside ulla’s illus zytulla sim - 5 - pellant ar g or sugge :15-20). r art wings ure’s axis 1, Appella ide surface ckwise an ide the ski s that the Appellant 4, reprodu rzytulla a lines that the skirt.” trations an ply does n gues that t stion of su According that are d . (Id.) Ap nt states th 26 of the gle with r rt.” (Brie wings 28 : ced below re connect are parall (Emphas d written ot disclos he Examin ch to Appell isposed at pellant’s at “the fle tamper ba espect to t f 8:2-8). K are indeed , Appella ed to the i el to the ax is in origin descriptio e the orien er ant, a xible nd 24 he axis of amath’s disposed nt states: nside is of the al) (Brief ns of the tation of Appe Appl conn argu coun elem view 13 d elem al 2010-00 ication 10/ ection of t ment insof terclockw Regardin ents 226 a ed from in oes not sho ents 226. 6061 799,114 he wings 3 ar that the ise, as clai g Ma’s Fi re at a clo side the sk w the orie 4 to the b wings 34 med. gure 13, A ckwise ang irt.” (Bri ntation of - 6 - and 14. T are not dis ppellant s le to the a ef 11:20-1 the conne hus, we ag closed as tates that “ xis of the 2:2). We ction of th ree with A being tilte the wedge closure sk find that M e closure’ ppellant’s d or ramp irt as a’s Figure s ramp Appe Appl ramp parti tight with elem the c the c elem claim of K conn al 2010-00 ication 10/ Ma’s Fig elements cularly, M ened. (Ma the closur ents 242 a losure’s ra losure’s sk ents 226 a ed. We note amath, Prz ecting orie 6061 799,114 ure 15 ho 226 are pa a’s Figure 2:52-53). e’s ramp e re shown mp eleme irt. Thus, re not disc that the E ytulla, and ntation w wever, rep rallel to th 15 shows The neck lements 22 as being pa nts 226 are we agree losed as h xaminer d Ma each hen viewe - 7 - roduced b e axis of t the bottle has ramp 6. (Ma 5 rallel to th correspo with Appe aving a co oes not dis fail to sho d in the sa elow, show he closure neck upon elements :15-34). T e axis of t ndingly pa llant’s tha unterclock pute that t w a counte me manne s that the ’s skirt. M which the 242 that in he neck’s he neck. rallel to th t the closu wise conn he cited w rclockwis r by which closure’s ore closure is terlock ramp Logically, e axis of re’s ramp ection as ings e Appeal 2010-006061 Application 10/799,114 - 8 - Appellant’s wings are described with reference to Appellant’s Figure 8. Instead, the Examiner contends that a specific direction of viewing (Ans. 8:5) is not specified by the claims and that each of the prior art wings can therefore be construed as tilting counterclockwise as claimed or at whatever angle desired by simply varying the orientations from which the wings are viewed. (Ans. 7:11-9:9). Such a position improperly ignores clear indication in Appellant’s specification that “counterclockwise” means tilting left of vertical when viewed from inside of the closure’s skirt and with respect to the closure’s orientation. For the above reasons, we reverse the anticipation rejections of claims 1-7 and 12. II. § 103(a) Rejections Claims 5, 6, and 8-11 were rejected under 35 U.S.C. §103(a). Claims 5 and 6 were rejected as obvious over Przytulla; claims 8 and 9 were rejected as obvious over Ma; and claims 10 and 11 were rejected as obvious over Ma and Curry. The Examiner’s rationale supporting the obviousness rejections does not cure the deficiency of each of Przytulla and Ma as a base reference regarding the counterclockwise oriented wings as claimed. Accordingly, the obviousness rejection of claims 5, 6, and 8-11 cannot be sustained. DECISION The rejection of claims 1-4 and 6 under 35 U.S.C. § 102(b) as anticipated by Kamath is reversed. The rejection of claims 1, 3-5, and 7 under 35 U.S.C. § 102(b) as anticipated by Przytulla is reversed. Appeal 2010-006061 Application 10/799,114 - 9 - The rejection of claims 1, 3-5, and 7 under 35 U.S.C. § 102(b) as anticipated by Ma is reversed. The rejection of claims 5 and 6 under 35 U.S.C. § 103(a) as obvious over Przytulla is reversed. The rejection of claims 8 and 9 under 35 U.S.C. § 103(a) as obvious over Ma is reversed. The rejection of claims 10 and 11 under 35 U.S.C. § 103(a) as obvious over Ma and Curry is reversed. The rejection of claims 2 and 12 under 35 U.S.C. § 102(b) as anticipated by Ma is reversed. REVERSED KMF