Ex Parte Desoto-Burt et al

Patent Trial and Appeal Board

Feb 21, 2018

13350320 (P.T.A.B. Feb. 21, 2018)

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.
13/350,320 01/13/2012 Widalys Luz DESOTO-BURT 11981M 8782
27752 7590 02/23/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
WAY, JAMES R
ART UNIT PAPER NUMBER
3788
NOTIFICATION DATE DELIVERY MODE
02/23/2018 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):
centraldocket. im @ pg. com
pair_pg @ firsttofile. com
mayer.jk @ pg. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WIDALYS LUZ DESOTO-BURT,
TODD MITCHELL DAY,
RALPH EDWIN NEUFARTH,
RICHARD DARREN SATTERFIELD,
CHOW-CHI HUANG,
MIGUEL ALBERTO HERRERA,
SU-YON MCCONVILLE,
ALFREDO PAGAN,
BRIAN DAVID ANDRES, and
CRISTIAN ALEXIS VIOLA-PRIOLI
Appeal 2017-003906
Application 13/3 50,3201
Technology Center 3700
Before MICHAEL L. HOELTER, MICHELLE R. OSINSKI, and
NATHAN A. ENGELS, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
1 According to Appellants, the real party in interest is The Procter & Gamble
Company (Br. 1).
Appeal 2017-003906
Application 13/350,320
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from the
Examiner’s final rejection of claims 1—10, 14, and 16—22. Final Act. 1
(Office Action Summary). Claims 11—13 and 15 have been canceled. See
Submission of Amendment with Filing of RCE dated August 4, 2015. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
THE CLAIMED SUBJECT MATTER
The disclosed subject matter “relates to an array of products
comprising a plurality of different containers having a similar container to
closure interface across at least one brand and different volumetric sizes
wherein at least one of said containers comprises more than one undercut.”
Spec. 2:15—17. Apparatus claim 1 is the sole independent claim, is
illustrative of the claims on appeal, and is reproduced below.
1. An array of products comprising a plurality of different
containers having a similar container to closure interface across
at least one brand and different volumetric sizes wherein at least
one of said containers comprises more than one undercut
wherein a portion of said containers comprises a non-linear
geometry about a neck of said containers and the closure
interface and further wherein a closure is integrated with a
shoulder geometry of a container wherein the shoulder is off
center in relation to the center of the neck and provides a
completion of a container silhouette and wherein the plurality
of different containers having a similar container to closure
interface comprises a geometry wherein the vertical side of the
shoulder that has an interface with a closure has a positive draft
angle of less than 10 degrees.
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REFERENCES RELIED ON BY THE EXAMINER
Witherspoon US 6,302,286 B1 Oct. 16,2001
Adams US 2011/0137272 A1 June 9, 2011
THE REJECTIONS ON APPEAL
Claims 1—10, 14, 16—18, and 22 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Witherspoon.
Claims 19-21 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Witherspoon and Adams.
ANALYSIS
The rejection of claims 1—10, 14, 16—18, and 22
as unpatentable over Witherspoon
Appellants argue claims 1—10, 14, 16—18, and 22 together. Br. 3—11.
We select claim 1 for review, with the remaining claims standing or falling
with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv). We address Appellants’
arguments as follows.
“Off Center”
Claim 1 includes the limitation “wherein the shoulder is off center in
relation to the center of the neck.” The Examiner relies on Figures 1 and 7
of Witherspoon as disclosing this limitation. Final Act. 3. The Examiner
states, “the claim and specification do[] not detail that it is in fact the center-
point or center axis of the shoulder, but the shoulder itself that is ‘off center
in relation to the center of the neck.’” Ans. 2. The Examiner also provides
an annotation of Figure 2 of Witherspoon identifying the “off center” nature
of the shoulder. Ans. 3. Appellants contend that Witherspoon does not
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disclose this limitation because Witherspoon does not disclose a shoulder.
Br. 7.
Witherspoon identifies item 5 as a “shoulder” (Witherspoon 4:65) and
the Examiner has clearly relied on this item 5 as corresponding to the recited
“shoulder.” Final Act. 3 (“[t]he shoulder area ([i]tem 5)”). The Examiner
also addresses the off center nature of “Witherspoon’s shoulder (item 5).”
Ans. 2 (“Witherspoon’s shoulder (item 5) is located on the perimeter of the
container and therefore is in an off center relation to the center of the neck”).
Accordingly, and based on the record presented, Appellants’ contention is
not persuasive.
“Similar Container to Closure Interface”
Claim 1 also includes the limitation of “different containers having a
similar container to closure interface across . . . different volumetric sizes.”
Appellants dispute the Examiner’s rejection stating, “if a container, such as
Witherspoon, does not have [a] shoulder which is off center in relation to the
center of the neck,” then this “limits the ability to resize the bottle” while
still using the same closure. Br. 7—8. Appellants state that this feature is
possible with Appellants’ design and that such feature “cannot be achieved
with the bottle or teachings of Witherspoon.” Br. 8.
Appellants’ assertion is not persuasive because Appellants presume
that Witherspoon “does not have [a] shoulder which is off center.” Br. 7.
We are not persuaded of the validity of such presumption for the reasons
stated above. Also, Appellants do not explain why Witherspoon’s bottle
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cannot be resized2 or why Witherspoon’s “container to closure interface”
cannot be “transfer[ed] from one bottle to the next” as stated by the
Examiner. Final Act. 3. In short, unsupported attorney arguments are not
sufficient to rebut a prima facie case of obviousness. See In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997). Appellants’ contentions are not
persuasive of Examiner error.
“Draft Angle”
Claim 1 further includes the limitation “wherein the vertical side of
the shoulder that has an interface with a closure has a positive draft angle of
less than 10 degrees.” The Examiner acknowledges that “Witherspoon does
not explicitly teach” this limitation, however, the Examiner states, “Figures
1 and 2 of Witherspoon appear to have positive draft angles of
approximately 10 degrees or less.” Final Act. 3. Appellants contend that the
Examiner’s assertion that Witherspoon’s figures “appear to have positive
draft angles” within the recited range “is not substantiated with any
disclosure in Witherspoon.” Br. 8. Further, Appellants contend, “one of
skill in the art would not ascertain that the Figures 1 and 2 of Witherspoon
appear to have a positive draft angle of approximately 10 degrees or less.”
Br 8.
The Examiner explains that Witherspoon’s shoulder “consists at least
of the vertical wall that the closure attaches to” and, “[a]s such a vertical
wall would have a draft angle of 0 degrees,” this meets the limitations of the
limitation “less than 10 degrees.” Ans. 4. Appellants’ arguments are not
2 A change in size is generally recognized as being within the level of
ordinary skill in the art. In re Rose, 220 F.2d 459 (CCPA 1955).
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persuasive of Examiner error on this point in view of the near vertical
illustration of a portion of region 5 as illustrated in Witherspoon’s Figure 2.
In addition to addressing what Witherspoon’s figures show, the
Examiner also states that as per MPEP § 2144.04 IV, “a change in shape
would be considered obvious to one of ordinary skill in the art absent any
persuasive evidence that the particular configuration of the claimed
invention is significant.” Final Act. 4; see also Ans. 4. Hence, according to
the Examiner, “it would have been obvious to modify the specific angles of
the shoulders of the array of products as taught by Witherspoon in order to
provide a surface to a user’s preference.” Final Act. 4.
Appellants contend, “[hjaving a positive draft angle of less than 10
degrees is important for two main reasons.” Br. 9 (referencing Spec. 8:26 to
9:20). The first “main reason" pertains to what is “perceived” to be
“Consumer acceptance” regarding a “space or gap” between the closure and
the container. Br. 9; Spec. 9:4—11. Appellants’ assertion based on consumer
perception is speculative in nature and thus, as above, we decline to credit
Appellants’ unsupported attorney argument. See In re De Blauwe, 736 F.2d
699, 705 (Fed. Cir. 1984); Estee Lauder, Inc. v. L’Oreal, S.A., 129 F.3d 588,
595 (Fed. Cir. 1997).
The second “main reason” pertains to the “[potential re-application
of closure[s] across multiple container sizes.” Br. 9; Spec. 9:13—20. This
“re-application” of closures feature has been addressed in the above section
titled “Similar Container to Closure Interface” (and more specifically the
Examiner’s statement that Witherspoon’s closures can be “transfer[ed] from
one bottle to the next” (Final Act. 3)). Appellants’ arguments are not
persuasive that Witherspoon fails to likewise teach this benefit.
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Accordingly, Appellants’ assertion that the recited “draft angle” “A
important” or has significance is not persuasive that the Examiner’s above
stated rationale is in error.
“Integrated”
Claim 1 also includes the limitation “wherein a closure is integrated
with a shoulder geometry of a container.” Appellants contend, “the
Witherspoon container has no shoulders.” Br. 9. However, as indicated
above, the Examiner correlates areas 5 and 17 of Witherspoon’s bottle to the
recited “shoulder.” See Ans. 4 (i.e., Witherspoon’s shoulder area “consists
at least of the vertical wall that the closure attaches to [i.e., area 17] and the
slanted portion connecting to the remainder of the bottle body [i.e., area 5]”);
see also Examiner’s annotation of Figure 2 of Witherspoon (Ans. 3). Thus,
although Witherspoon’s corresponding shoulder may not appear identical to
Appellants’ shoulder, Appellants’ arguments are not persuasive that “the
Witherspoon container has no shoulders.”
Appellants further contend that what the Examiner correlates to the
recited shoulder “does not meet the requirements as defined in the present
invention.” Br. 10. More specifically, the “Witherspoon closure is wot
integrated1'1 and ‘Witherspoon does not contain the second part” of this
term’s definition. Br 10. Appellants’ Specification describes the second
part of “integrated” as “(ii) that at least one shoulder of said article wraps
around at least part of said closure.” Spec. 5:19—21; see also Br. 10.
However, despite this allegation, Appellants state, “[t]he only section
of [Witherspoon’s] container that wraps around the closure is the neck.” Br.
9. Witherspoon’s “neck” is identified as regions 5 and 17 of Witherspoon’s
bottle (Witherspoon 1:28—30, 1:44-49, 2:53—55, 3:57—59, and Figs. 1, 2) and
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it is these same regions 5 and 17 that the Examiner correlates to the recited
“shoulder.” See Ans. 4 (i.e., both “the vertical wall that the closure attaches
to and the slanted portion connecting to the remainder of the bottle body”);
see also Examiner’s annotation of Figure 2 of Witherspoon (Ans. 3). Hence,
Appellants are not persuasive that the “shoulder” identified by the Examiner
fails to be “integrated” in view of Appellants’ statement above.
“Undercut”
Claim 1 also includes the limitation “wherein at least one of said
containers comprises more than one undercut.” Appellants’ Specification
describes “undercut” as follows:
The term “undercut” as used herein [is] a physical
geometry that hinders article removal from a mold when said
mold is opened in a linear direction which intersects at least a
portion of said geometry.
Spec. 5:23-25.
The Examiner refers to Witherspoon’s “shoulder area ([i]tem 5)” and,
more specifically with respect to dependent claim 3, “[i]tem 5” as disclosing
this “undercut.” Final Act. 3, 4 (the latter referencing Witherspoon 4:62—
67). This recited portion of Witherspoon describes “shoulder 5 extending
radially outward from the exterior surface of’ the container. Such extending
shoulder 5 has both an upper and lower radially projecting surface (as well
as an outermost curved perimeter therebetween). See Witherspoon Figs. 6,
7. These radially projecting surfaces, when combined together, appear to
satisfy the limitation “more than one undercut” as this term is understood
because the surfaces would resist container removal when the mold is
opened in a linear direction (such as at the top or at the bottom of the
container). See Spec. 5:23—25.
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Appellants acknowledge that their “shoulders create the undercut
geometry to which the present invention requires,” but do not assert that
Witherspoon fails to disclose like plural undercuts. Br. 11. Instead,
Appellants state, “[t]he manner by which the present invention is able to
maintain the silhouette is enabled by having undercuts on the top of the
bottle’s geometry so that the overall shape looks complete.” Br. 11.
Appellants contend that this complete look “is not disclosed in
Witherspoon” and as such, “Witherspoon neither discloses nor makes
obvious the present invention.” Br. 11.
Appellants’ concerns regarding a complete look (see also infra) is not
persuasive that the Examiner erred in relying on Witherspoon for disclosing
the recited “more than one undercut.”
“Completion of a Container Silhouette”
Claim 1 further includes the limitation wherein the off center shoulder
“provides a completion of a container silhouette.” Appellants contend,
“there is a clear break between the closure and the Witherspoon container”
and that the above limitation “means that the closure and bottle follow the
same contour.” Br. 11. The Examiner states, however, that “this is not what
is claimed.” Ans. 4. As per the Examiner, “[t]he claim merely requires that
the closure provides a completion of a container silhouette” and “[t]he
specification does not provide any further details as to what is required by
completing the silhouette.” Ans. 4—5. Hence, as per the Examiner, because
“a silhouette is merely the outline or general shape of something, . . . any
closure completes a silhouette.” Ans. 5.
Appellants do not identify any error in this logic expressed by the
Examiner. Instead, Appellants contend that because of the above “no
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breaks” limitation, the present invention can “have the same closure applied
to different shaped containers.” Br. 11. This matter of using the same
closure for different containers has been addressed above and is not
persuasive.
Accordingly, and based on the record presented, we are not persuaded
of Examiner error regarding this limitation.
The rejection of claims 19—21
as unpatentable over Witherspoon and Adams
Appellants argue dependent claims 19-21 together. Br. 12—16. We
select claim 19 for review with claims 20 and 21 standing or falling with
claim 19.
The Examiner relies on Adams for teaching “a closure comprised of a
sustainable material.” Final Act. 7. Appellants do not dispute this additional
teaching of Adams, but instead repeat arguments regarding Witherspoon and
how Witherspoon fails to teach the limitations of parent claim 1. Br. 13—16.
For example, Appellants address Witherspoon contending that
Witherspoon’s “shoulder is [not] off center” (Br. 13); that Witherspoon does
not disclose the recited “positive draft angle” (Br. 14); that Witherspoon
fails to have “a similar container to closure interface” (Br. 14); that
Witherspoon’s shoulder is not “integrated” (Br. 15); that there is no
“undercut” in Witherspoon that enables the overall shape of the bottle to
look complete (Br. 16); and that Witherspoon lacks Appellants’ “no breaks”
limitation (Br. 16). Appellants’ contentions are not persuasive for the
reasons expressed above.
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Additional Comments
Should prosecution of this case continue, it is suggested that at least
claims 7, 17, and 18 be considered as to whether they recite limitations
entitled to patentable weight and therefore “specify a further limitation” of
claim 1 as per 35 U.S.C. § 112(d). See Pfizer, Inc. v. Ranbaxy Labs. Ltd.,
457 F.3d 1284, 1292 (Fed. Cir. 2006) (holding a dependent claim invalid for
failing to comply with pre-AIA 35 U.S.C. § 112, fourth paragraph).
DECISION
The Examiner’s rejections of claims 1—10, 14, and 16—22 are
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)(l)(iv).
AFFIRMED
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