14222831 - (D) (P.T.A.B. Apr. 3, 2019)

Ex Parte Field

Patent Trials and Appeals BoardApr 3, 2019

14222831 - (D) (P.T.A.B. Apr. 3, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/222,831 03/24/2014 27885 7590 FAY SHARPE LLP 1228 Euclid Avenue, 5th Floor The Halle Building Cleveland, OH 44115 04/04/2019 FIRST NAMED INVENTOR Patrick Frank Field 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. FIEL 20003US02 3096 EXAMINER HUSON, MONICA ANNE ART UNIT PAPER NUMBER 1742 MAIL DATE DELIVERY MODE 04/04/2019 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 PATENT TRIAL AND APPEAL BOARD Ex parte PA TRICK FRANK FIELD Appeal2018-004226 Application 14/222,831 Technology Center 1700 Before ROMULO H. DELMENDO, DONNA M. PRAISS, and SHELDON M. McGEE, Administrative Patent Judges. McGEE, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. Â§ 134(a), Appellant1 seeks our review of the Examiner's decision to reject claims 15-17, 20, and 30-45. We have jurisdiction. 35 U.S.C. Â§ 6. We reverse. 1 Appellant is Field Manufacturing Corporation. The Inventor, Patrick Frank Field, is identified as the real party in interest. App. Br. 1. Appeal2018-004226 Application 14/222,831 SUBJECT MATTER The subject matter on appeal relates to methods of manufacturing plastic bottles where a bottle closure is applied and has a length that extends past at least two ribs that are formed in the neck portion of the bottle during manufacture. Spec. ,r,r 2, 7. According to the Specification, plastic bottles in the prior art include "an exterior support ring secured to a lip of the neck portion of the plastic bottle [which] is designed to slide over the lip during the initial sealing of the bottle and to become disassociated from the cap when a person open[s] the bottle." Id. ,r 3. The exterior support rings are stated to be problematic because their diameter at the neck portion purportedly inhibits long-skirt capsule closures - i.e., metal or plastic closures that extend further down the bottle neck beyond the position of existing support rings- from working properly. Id. ,r 32. By providing at least two ribs in the bottle neck, the inventive method purportedly provides a way to hermetically seal bottles without using an exterior support ring. Id. ,r,r 32, 33. Furthermore, the "at least two ribs" formed during production are said to act as a handling mechanism by which "handling equipment can ... grab the preform and bottle in between ribs 18 and 20." Id. ,r 31. Independent claims 30 and 44 are illustrative of the claimed subject matter and are copied below with key limitations at issue in this appeal italicized: 30. A method for the manufacture of a plastic bottle comprising the step of forming a preform by injection molding, forming at least two ribs in a neck portion of the plastic bottle preform during the injection molding step, stretch molding the 2 Appeal2018-004226 Application 14/222,831 [preform ]2 into a bottle, wherein handling equipment grabs a concave support ledge formed on said preform between the pair of ribs during production, a first rib forming a ledge and a second rib forming a support for the handling equipment, filling said bottle, and applying a closure having a length extending past the pair of ribs. 44. A method for the manufacture of a plastic bottle comprising the step of forming a preform by injection molding, forming at least two ribs and a thread in a neck portion of the plastic bottle preform during the injection molding step, said ribs and thread extending a distance at least substantially equal from said neck portion, stretch molding the [preform] into a bottle, filling said bottle, and applying a metal closure having a length extending past the pair of ribs, said closure including a removable cap portion. App. Br. 9, 10-11 (Claims App'x) 3 (emphases added). Figure 2 of the Inventor's Drawings, reproduced below, illustrates the recited "at least two ribs" that are formed in the neck portion of the plastic bottle during manufacture. App. Br. 3; Drawings, Fig. 2. 2 In the event of further prosecution, Appellant is invited to correct this apparent typographical error, as well as a similar error in claim 44. 3 Our Decision refers to the Claims Appendix filed October 11, 2017 responsive to the Notice of Non-Compliant Appeal Brief of September 11, 2017. For quotes from the Appeal Brief, we cite to the Appeal Brief filed June 12, 2017. 3 Appeal2018-004226 Application 14/222,831 Ft9. 2 Appellant's Figure 2 depicts a neck portion 14 of a bottle having an opening 16, threads 22 and ribs 18 and 20 having recess 60 there between. Spec. ,r,r 20, 22. REJECTIONS On appeal, the Examiner maintains the following rejections under 35 U.S.C. Â§ 103(a): I. Claims 15-17, 20, and 30-43 as unpatentable over Strassheimer (US 4,969,563, issued November 13, 1990) in view ofKrishnakumar (US 4,603,831, issued August 5, 1986) and Walker (US 4,007,851, issued February 15, 1977); and II. Claims 44 and 45 as unpatentable over Strassheimer in view of Walker. Final Act. 3-6; Ans. 3. OPINION Relevant to the appeal of each rejection, the Examiner finds that "Strassheimer does not specifically show applying a closure having a length extending past the pair of ribs" and relies on Walker for this teaching. Final Act. 4, 6. Specifically, the Examiner finds that "Walker shows that it is 4 Appeal2018-004226 Application 14/222,831 known to carry out a method of applying a closure having a length extending past a pair of ribs to a bottle (Figure 8)." Id. Figure 8 of Walker is reproduced below: F/6.8 Walker's Figure 8 "illustrates the application of a cap ... to a glass bottle 26." Walker 3:6-7. "Threads 28, about 1 ~ turns, have been rolled onto the cap in a conventional manner, using the glass threads 30 of the bottle as a die .... [with] the skirt of the closure [being] rolled under a pilfer- proof band 34 of the bottle." Id. 3:7-14 (emphasis added). Appellant asserts that the Examiner's rejection is not factually supported because "[t]here is no second rib in Walker." App. Br. 5. Appellant asserts "that element 34 cannot be both a rib and a thread." Id. According to Appellant, the combination of references is deficient to establish a prima facie case of obviousness because it "teaches positioning of closure 10 in a manner overlapping only what the Examiner has designated as the first rib of Strassheimer." Id. In response, the "Examiner considers elements 30 and 34 to meet the features of a pair of ribs." Ans. 5, 6. 5 Appeal2018-004226 Application 14/222,831 We agree with Appellant that the Examiner's finding that Walker evinces that "it is known to carry out a method of applying a closure having a length extending past a pair of ribs to a bottle" is not factually supported and, therefore, reverse the rejections. In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) ("The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not ... resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies" in the cited references."). Here, Walker distinguishes between threads 30 and the pilfer-proof band 34, and provides divergent purposes for each. See Wagner 1:16-19 (noting how "the neck of the bottle below the threads is formed with a circumferential pilfer-proof band about which the skirt of the cap is rolled to lock the cap to the bottle."); see also id. at 3:7-10 (explaining how threads 28 of the cap closure use "glass threads 30 of the bottle as a die."). The Inventor's Specification likewise makes a distinction between threads 22 and ribs 18 and 20. Compare Spec. ,r 22 ("threads 22 are designed to engage the interior of a threaded bottle cap ... to hermetically seal bottle 1 O") with Spec. ,r 31 ("rib 18 acts as a ledge and rib 20 as the support for the handling equipment" used during bottle production). In re Smith Int'!, Inc., 871 F.3d 1375, 1382 (Fed. Cir. 2017) (a broad claim construction was erroneous where "the ... specification consistently describe[d] and refer[red] to the body as a component distinct from others, such as the mandrel, piston, and drive ring."). Because the Examiner's rejection is not supported by facts, and because the Examiner advances no alternative obviousness rationale, we are constrained to reverse the rejections on appeal. 6 Appeal2018-004226 Application 14/222,831 DECISION Rejections I and II are reversed. REVERSED 7