Ex Parte Dreyer et al

Patent Trial and Appeal Board

Aug 29, 2016

13393635 (P.T.A.B. Aug. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/393,635 03/06/2012
26936 7590 08/31/2016
SHOEMAKER AND MATT ARE, LTD
c/o DA VIS & BUJOLD, P.L.L.C.
112 PLEASANT STREET
CONCORD, NH 03301
FIRST NAMED INVENTOR
Lino Dreyer
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
6749 9021
EXAMINER
STASHICK, ANTHONYD
ART UNIT PAPER NUMBER
3788
NOTIFICATION DATE DELIVERY MODE
08/31/2016 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):
USPTO@SHOMAT.COM
patent@nhpat.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LINO DREYER, KLAUS THANISCH, and
KLAUS NATERSKY
Appeal 2014-008908 1,2
Application 13/393,635
Technology Center 3700
Before NINA L. MEDLOCK, PHILIP J. HOFFMANN, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the rejection of
claims 9--17. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellants' Specification ("Spec.," filed Mar. 1,
2012), Appeal Brief ("Appeal Br.," filed Apr. 25, 2014), and Reply Brief
("Reply Br.," filed Aug. 13, 2014), as well as the Examiner's Answer
("Answer," mailed June 13, 2014). We note that the Reply Brief pages are
unnumbered; however, we number the pages consecutively, and number the
first page as page 1.
2 According to Appellants, "[ t ]he real party in interest is Obrist Closures
Switzerland." Appeal Br. 1.
Appeal2014-008908
Application 13/393,635
According to Appellants, "[ t ]he invention relates to container closure
assemblies incorporating a reservoir for material (typically a liquid, a
powder[,] or a granulate material)[,] which is kept separate from the material
(typically liquid) in the container[,] until mixing of the materials is
required." Spec. 1. Claim 9 is the only independent claim, and we
reproduce the claim, below, as representative of the appealed claims. 3
9. A closure assembly comprising:
a closure cap adapted to be fitted to the neck of a container
to close the container, said cap comprising an upper wall and a
cylindrical skirt depending there from,
a reservoir being formed on the underside of the upper
wall within the skirt and provided with a dispensing opening; and
a closing member to close the dispensing opening of the
reservoir; the closing member comprising
a fixing member, the fixing member being adapted to fit
into the neck of the container, when the assembly is fitted thereto,
with an interference fit,
a plug member, the plug member being adapted to fit into
an open end of the reservoir to close the reservoir when the
closure cap and closing member are fitted together, and
a passage element, allowing material to be dispensed from
the reservoir into the container, the interference fit being such
that when the closure cap is removed from the container, the
closing member remains held within the neck of the container
and is separated from the closure cap so that the dispensing
opening is opened and material contained therein is dispensed
into the container,
wherein the closure cap is provided with sealing means for
directly sealing against the neck of such container, said sealing
means being an annular wall extending downwardly from the
3 We remove the underlining Appellants mistakenly included in claim 9.
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Application 13/393,635
Id.
underside of the upper wall of the closure cap to fit sealingly into
the neck of the container.
REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
claims 9--15 and 17 under 35 U.S.C. § 103(a) as unpatentable over
Birkmayer (US 7, 178,683 B2, iss. Feb. 20, 2007) and Ramsey
(WO 2007/020169 Al, pub. Feb. 22, 2007)4 ; and
claim 16 under 35 U.S.C. § 103(a) as unpatentable over Birkmayer,
Ramsey, and Fuchs (US 2006/0255003 Al, pub. Nov. 16, 2006).
See Answer 3-7.
ANALYSIS
Appellants argue that the rejection of independent claim 9 is
erroneous because the suggestion or motivation from the prior art references,
on which the Examiner relies for modifying Birkmayer based on Ramsey, is
unreasonable. See Appeal Br. 4--7; see also Reply Br. 1-5. We note,
however that a teaching, suggestion, or motivation is not required in every
circumstance to support an obviousness rejection. Rather, the Supreme
Court discussed circumstances in which a patent might be determined to be
obvious without an explicit teaching, suggestion, or motivation provided by
the prior art. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398 (2007). In
4 We note that the Appeal and Reply Briefs as well as the Answer refers to
this reference by variations of the Applicant's name, OBRIST CLOSURES
SWITZERLAND GMBH, while we refer to the reference by the first-named
inventor's surname, Ramsey.
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Application 13/393,635
KSR, the Supreme Court reaffirmed that "[ t ]he combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results." Id. at 416. Further, the Court stated
that when considering obviousness "the analysis need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ." Id. at 418. Additionally, "when a
patent 'simply arranges old elements with each performing the same
function it had been known to perform' and yields no more than one would
expect from such an arrangement, the combination is obvious." Id. at 417
(citing Sakraida v. Ag Pro, Inc., 425 U.S. 273, 282 (1976)).
In this case, the Examiner proposes to use components of Ramsey's
arrangement, which includes, for example, plug 11 and passages 15, in place
of corresponding components ofBirkmayer's arrangement, which includes,
for example, cutting edge 22 and bottom 32. See Answer 3--4, 7-10; n.b.
at 8 (describing the use of Ramsey's components in Birkmayer's
arrangement as "a mere matter of a substitution of one for the other."). In
Ramsey, removal of cap 2 results in the dispensation of a substance stored in
reservoir 7, through passages 15, into container 1. See, e.g., id. at 4; see also
Ramsey Abstract. Similarly, in Birkmayer, removal of cap 2 results in the
dispensation of a substance stored in supply container 4, through a cut made
in bottom 32 by cutting blade 22, into container B. See, e.g., Answer 4. The
Examiner's proposed combination would provide a predictable result,
inasmuch as the device resulting from the combination of references would
permit, for example, a substance in Birkmayer's supply container 4 to flow
into container B through the passages added based on Ramsey's teaching,
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Application 13/393,635
similar to the way the substance flows through the passages in Ramsey.
Thus, the use of Ramsey's passages 15 and plug 11 with components of
Birkmayer yields no more than what would be expected.
For the above reasons, we sustain the rejection of claim 9. Appellants
do not separately argue the patentability of claims 10-15 and 17 that depend
from claim 9. See Appeal Br. 3-7. Thus, we sustain the rejection of these
dependent claims.
Although Appellants argue claim 16 separately, Appellants' argument
is substantially the same as that set forth above for claim 9. See Appeal
Br. 8-9. Thus, we sustain the rejection of claim 16 for substantially the
same reasons as we sustain the rejection of claim 9.
DECISION
We AFFIRM the Examiner's obviousness rejections of claims 9-17.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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