Ex Parte Fuchs et al

Patent Trials and Appeals Board

Mar 19, 2014

11581140 - (D) (P.T.A.B. Mar. 19, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte TIMOTHY J. FUCHS and CARL R. SMITH
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Appeal 2011-011790
Application 11/581,140
Technology Center 3700
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Before: EDWARD A. BROWN, CHARLES N. GREENHUT, and
BEVERLY M. BUNTING, Administrative Patent Judges.

GREENHUT, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-011790
Application 11/581,140
2
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
21. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

The claims are directed to a dual seal closure and package. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A closure for sealing engagement with a container neck
finish having at least one external thread segment, which
includes:
a base wall having a skirt with at least one internal thread
segment for engagement with the at least one external thread
segment to thread the closure onto the container neck finish,
a first flexible resilient annular wall extending from said
base wall within said skirt and positioned for sealing
engagement with an inside surface of the container neck finish
when the closure is threaded onto the container neck finish,
a second flexible resilient annular wall extending from
said base wall between said first annular wall and said skirt and
positioned for sealing engagement with an outside surface of
the container neck finish when the closure is threaded onto the
container neck finish, and
a circumferential series of external first axial ribs on said
first annular wall and a circumferential series of internal second
axial ribs on said second annular wall, said first and second
series of axial ribs angularly alternating around said first and
second annular walls and functioning both to stiffen said first
and second annular walls and to limit penetration of the
container neck finish between said first and second annular
walls.

Appeal 2011-011790
Application 11/581,140
3
REJECTION
Claims 1-21 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gassner (US 2005/0247663 A1, pub. Nov. 10, 2005) in
view of Kessler (US 4,241,864, iss. Dec. 30, 1980). Ans. 3.

OPINION
Regarding independent claims 1 and 13, the Examiner found that
Gassner discloses a structure similar to that claimed by Appellants, but with
bottle neck limiting structures in the form of webs 6 extending from a first
annular wall 4 all the way to a second annular wall 5(Gassner, figs. 1-5), as
opposed to alternating ribs 48, 50 on each annular wall 40 ,42 (Application,
figs. 1-5). Ans. 3-4. The Examiner, citing the dimples 82, 84, of Kessler
concluded that
it would have been obvious to one of ordinary skill in the art at
the time of invention to modify Gassner with a series of first
and second ribs, as taught by Kessler, in order to facilitate
design choice, provide a strengthening means to the respective
annular walls, enhance sealing and limit the axial movement of
the container neck finish when the closure is fully seated on the
container.
Ans. 4.
None of the rationales articulated by the Examiner appear to have any
rational underpinnings. App. Br. 14-15. It is unclear what the Examiner
means by “facilitate design choice.” It is also unclear how or why Kessler’s
dimples, macroscopic surface irregularities, intended to promote solvent or
adhesive bonding (col. 6, ll. 8-20) would “provide [] strengthening” to
Gassner’s walls. To the extent Kessler’s dimples “enhance sealing,” they do
so by virtue of promoting an adhesive bond between the closure and
container—a modification that would defeat the intended purpose of
Appeal 2011-011790
Application 11/581,140
4
Gassner’s selectively removable screw top. Lastly, Gassner already has a
structure, webs 6, for “limit[ing] axial movement of the container neck.” The
Examiner has not articulated what benefit, if any, would be derived from
incorporating teachings of Kessler related to the dimples, which are for an
entirely different purpose, into Gassner. Even assuming arguendo that the
proposed combination would yield the claimed subject matter, we cannot
agree with the Examiner that it would have been obvious to one skilled in
the art to apply the structure and/or arrangement of Kessler’s dimples to
Gassner’s webs. The Examiner has failed to articulate rational underpinnings
to support the rejection of claims 1 and 13 under § 103(a). See KSR Int’l. v.
Teleflex, Inc., 550 U.S. 398, 418 (2007).
Although all the claims are grouped under the same rejection, the
Examiner does not appear to rely on Kessler in rejecting independent claims
7 and 17. The sole issue raised by Appellants (App. Br. 11) concerning
claims 7 and 17 is that the structure interpreted by the Examiner as the
recited “radiused tip,” Gassner’s inner bead 7, and the structure interpreted
as the “second flexible resilient annular wall,” Gassner’s sealing web 5,
cannot cooperate to “provide[] a point contact seal.” We agree.
Unless otherwise stated, patent drawings are generally understood not
to depict precise dimensions and proportions. See Hockerson-Halberstadt,
Inc. v. Avia Group Int'l, 222 F.3d 951, 956 (Fed. Cir. 2000). However, they
are prior art for all they fairly suggest. In re Aslanian, 590 F. 2d 911(CCPA
1979). At best, Gassner’s figures disclose a cylindrical contact pattern. App.
Br. 12. Gassner’s Specification is silent as to the specific configuration of
the interface between the inner bead 7 and sealing web 5. We cannot agree
with the Examiner that the fact that there is a radiused tip and transitional
portion between the linear portion of Gassner’s sealing web necessarily
Appeal 2011-011790
Application 11/581,140
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means there is point contact between the sealing web and inner bead. See
Ans. 9. Based on the figures and the absence of any discussion by Gassner,
contact along the linear portions is just as likely. Accordingly, the Examiner
has not established that Gassner necessarily discloses this element of claims
7 and 17.
The Examiner does not articulate any separate reasoning regarding the
dependent claims. We presume the Examiner relied upon the same logic and
factual findings in rejecting these claims and reverse the rejection of the
dependent claims along with their respective parent claims.

DECISION
The Examiner’s rejection is reversed.

REVERSED

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