Ex Parte Blythe et al

Board of Patent Appeals and Interferences

Jul 26, 2012

11528830 (B.P.A.I. Jul. 26, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/528,830 09/28/2006 James S. Blythe 47097-01335USPT 6446
56356 7590 07/27/2012
PACTIV CORPORATION
c/o NIXON PEABODY LLP
300 S. Riverside Plaza
16TH FLOOR
CHICAGO, IL 60606
EXAMINER
SMITH, CHAIM A
ART UNIT PAPER NUMBER
1782
MAIL DATE DELIVERY MODE
07/27/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JAMES S. BLYTHE, TOBY R. THOMAS,
ROBERT PETERSON, DONALD A. LEHMAN, and
REINER JARGOSH
__________

Appeal 2011-001030
Application 11/528,830
Technology Center 1700
____________

Before PETER F. KRATZ, JEFFERY T. SMITH, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

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Appellants appeal under 35 U.S.C. § 134 the final rejection of claims
1-7, 9-19, 26-35, 52-55, and 59-74. Claims 20-25 and 361 are withdrawn
from consideration (App. Br. 2). We have jurisdiction over the appeal
pursuant to 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appellants’ invention is said to be directed to a modular container
assembly and a merchandizing container display (Spec. para. [0002]).
Claims 1 and 59 are illustrative:
1. A modular container assembly comprising:
a first polymeric container including a first continuous
body portion and a first rim, the first rim encompassing and
projecting laterally outwardly from the first body portion, the
first rim having a first feature projecting generally upwardly
therefrom and a corresponding second feature being adapted to
be releasably engageable with another one of the first feature;
a second polymeric container including a second
continuous body portion and a second rim, the second rim
encompassing and projecting laterally outwardly from the
second body portion, the second rim having a third feature
projecting generally upwardly therefrom and a corresponding
fourth feature being adapted to be releasably engageable with
another one of the third feature; and
a third polymeric container including a third continuous
body portion and a third rim, the third rim encompassing and
projecting laterally outwardly from the third body portion, the
third rim having a fifth feature projecting generally upwardly
therefrom and a corresponding sixth feature being adapted to be
releasably engageable with another one of the fifth feature,

1 Appellants provide arguments regarding claim 36 (Reply Br. 14-17).
Because claim 36 has been withdrawn from consideration, we shall not
consider the merits of Appellants’ arguments regarding this claim.
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wherein the first rim, the second rim, and the third rim
are substantially identical,
wherein the first container, the second container, and the
third container are releasably engageable to each other by
fitting respective first, third and fifth upwardly-projecting
features into the corresponding second, fourth or sixth feature
of another container or into the first, third or fifth upwardly-
projecting feature of another container,
wherein at least one of the first container, second
container, and third container is inverted with respect to the
remaining containers so as to form a modular container
assembly.
59. A set of modular container assemblies comprising:
a first polymeric container including a first continuous
body portion and a first rim, the first rim encompassing and
projecting laterally outwardly from the first body portion, the
first rim having a first feature projecting generally upwardly
therefrom and a corresponding second feature being adapted to
be releasably engageable with another one of the first feature;
a second polymeric container including a second
continuous body portion and a second rim, the second rim
encompassing and projecting laterally outwardly from the
second body portion, the second rim having a third feature
projecting generally upwardly therefrom and a corresponding
fourth feature being adapted to be releasably engageable with
another one of the third feature;
a third polymeric container including a third continuous
body portion and a third rim, the third rim encompassing and
projecting laterally outwardly from the third body portion, the
third rim having a fifth feature projecting generally upwardly
therefrom and a corresponding sixth feature being adapted to be
releasably engageable with another one of the fifth feature;
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wherein the first rim, the second rim and the third rim are
substantially identical,
wherein the first container, the second container and the
third container are of different sizes,
wherein the first container and the second container are
sealingly engageable to each other by fitting the first feature of
a first container into the fourth feature of a second container to
form a modular container assembly,
wherein the first container and the third container are
sealingly engageable to each other by fitting the first feature of
a first container into the sixth feature of a third container to
form a modular container assembly,
wherein the second container and the third container are
sealingly engageable to each other by fitting the third feature of
a second container into the sixth feature of a third container to
form a modular container assembly.
Appellants appeal the following rejections:
1. Claims 1-7, 9-19, 26-35, 54 and 55 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Hayes (US 2004/0074902 A1
published Apr. 22, 2004) in view of Levinson (US 4,923,704 issued
May 8, 1990).
2. Claim 52, 53, and 59-74 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Hayes in view of Levinson and Barnes
(US 4,848,579 issued July 18, 1989).

ISSUES
1. Did the Examiner reversibly err in finding that Hayes teaches a
modular container assembly “wherein the first container, the second
container, and the third container are releasably engageable to each
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other by fitting respective first, third and fifth upwardly-projecting
features . . . into the first, third, or fifth upwardly-projecting feature of
another container” as required by independent claim 1 or variations of
this claim language as recited in claims 16, 26, 32 and 52? We decide
this issue in the affirmative.
2. Did the Examiner reversibly err in determining that the combined
teachings of Hayes, Barnes and Levinson would have rendered
obvious the subject matter of independent claims 59 and 67? We
decide this issue in the negative.

FINDINGS OF FACT AND ANALYSES
Issue (1)
The Examiner finds that Hayes teaches a modular container assembly
“wherein the first container, the second container, and the third container are
releasably engageable to each other by fitting respective first, third and fifth
upwardly-projecting features . . . into the first, third, or fifth upwardly-
projecting feature of another container” (Ans. 4). The Examiner addresses
variations of this claim limitation found in claims 16, 26, 32, and 52 by
making similar findings (Ans. 7, 8, 12-13).
Appellants argue that Hayes does not teach or suggest that the
containers are releasably engageable to each other by fitting respective
upwardly-projecting features into the upwardly-projecting features of
another container (Reply Br. 6-9, 17-18).
We construe the disputed feature of claims 1, 16, 26, 32 and 52 as
requiring that the upwardly-projecting features (e.g., ribs 30, 50, 70 in
Appellants’ Figure 1) are capable of nesting into upwardly projecting
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features (e.g., ribs 30, 50, or 70) of another container. So, for example, the
ribs 70 of third container 60 are capable of nesting into ribs 30 of first
container 20 when the containers are pushed together.
The Examiner has not explained how Hayes teaches such a feature of
the properly construed claims. Rather, we agree with Appellants that the
Examiner has not factually supported the finding that Hayes teaches the
disputed feature. As a matter of fact, we agree with Appellants that “Hayes’
containers 10, 110 . . . will rest with the flat upper surface 24 of each rib 20
of the bottom container pressed against the flat bottom surface of each space
[formed by a rib] of the top container” (Reply Br. 7; Hayes’ Fig. 3).
This argument appears to be supported by Hayes’ paragraph 46
disclosure that the rib height is minimized to reduce stacking height. In
other words, the rib heights need to be minimized because the ribs do not
nest into one another, but rather the flat surface of each rib touches the
opening of the rib of another container leaving a space. This would explain
the need to reduce rib height to maximize the stacking height.
On this record, the preponderance of the evidence favors Appellants’
argument of nonobviousness. We reverse the § 103 rejections of claims 1-7,
9-19, 26-35, 54 and 55 over Hayes in view of Levinson and claims 52 and
53 over Hayes in view of Barnes and Levinson.

Issue (2)
The Examiner’s rejection of Hayes in view of Barnes and Levinson of
claims 59 and 67 may be found on pages 15-18 of the Answer. The
Examiner finds that Hayes teaches all the features of claims 59 and 67
except for the third (claim 59) and fourth (claim 67) containers. The
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Examiner relies on Hayes’ paragraph 33 disclosure as teaching multiple
plates and, alternatively, on Levinson as teaching the conventionality of
providing a modular container with three containers (Ans. 16-17).
Appellants argue that Hayes does not teach a set of modular container
assemblies comprising three polymeric containers having substantially
identical rims, but are of different sizes (Reply Br. 21-22). Appellants argue
that Barnes and Levinson do not cure Hayes’ deficiencies. Id.
We construe claims 59 and 67 as requiring three or four containers,
respectively, that have rims with upwardly-projecting features that
releasably engage with spaces formed between the upwardly-projecting
features (e.g., the 2nd, 4th and 6th features in claim 59). Claims 59 and 67 do
not require that the upwardly-projecting features fit into the upwardly-
projecting features of another container as required by claims 1, 16, 26, 32
and 52. Moreover, claims 59 and 67 do not require that all three or four
containers be stacked at the same time. Rather, claim 59 merely requires the
capability of the first container to be engaged with the second or third
container, and the capability of the second container to be engaged with the
third container. Claim 67 similarly requires only that the first container is
capable of engagement with the second, third or fourth container, the second
container is capable of engagement with the third or fourth containers and
the third container is capable of engagement with the fourth container.
With this proper claim construction in mind, the preponderance of the
evidence favors the Examiner’s conclusion of obviousness. The Examiner
provides specific findings regarding the teachings of Levinson in the
combination with Hayes, which Appellants do not specifically contest.
Rather, Appellants merely argue that Levinson does not teach or suggest “a
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set of modular container assemblies comprising three polymeric containers
having substantially identical rims, but . . . different sizes” (Reply Br. 21).
We agree with the Examiner that Levinson and Barnes would have
suggested three or four containers (Ans. 16-17). The Examiner relies on
Hayes to teach different sized containers with identical rims (id. at 15-16).
Accordingly, the combined teachings of Hayes, Levinson and Barnes would
have suggested a modular container assembly with three or four containers
having interlocking identical rims. The properly construed claims do not
require all three or four container be interlocked together at the same time.
The claims require that all of the containers are capable of releasable
engagement with another container. The combination of Hayes in view of
Levinson and Barnes would have rendered obvious such an invention.
Hayes teaches that different sizes and types of items (e.g., bowls,
platters, tubs, single-serve and family-size containers) may be produced and
the rims of the items are releasably engageable (Hayes para. [0033]). In
light of Hayes, Levinson and Barnes, it would have been obvious to make
three or four containers of different sizes that are releasably engagable with
one another as stated by the Examiner (Ans. 15-18).
On this record and for the above reasons, we affirm the Examiner’s
§ 103 rejection of claims 59-74 over Hayes in view of Levinson and Barnes.

DECISION
The Examiner’s decision is affirmed-in-part.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

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ORDER
AFFIRMED-IN-PART

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