Ex Parte Hassell et al

Patent Trial and Appeal Board

Apr 17, 2013

11285768 (P.T.A.B. Apr. 17, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte JON P. HASSELL, WILLIAM P. APPS,
and GERALD R. KOEFELDA
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Appeal 2011-001495
Application 11/285,768
Technology Center 3700
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Before JAMES P. CALVE, WILLIAM A. CAPP, and JILL D. HILL,
Administrative Patent Judges.

HILL, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-001495
Application 11/285,768

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STATEMENT OF THE CASE
Jon P. Hassell et al. (Appellants) appeal under 35 U.S.C. § 134 from a
final rejection of claims 1, 3-8, 10, and 11. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM-IN-PART.

CLAIMED SUBJECT MATTER
The claimed subject matter relates to “nestable display crates for
transporting and storing containers.” Spec., para. [1]. Claims 1, 3-8, 10, and
11 are pending and subject to this appeal. Claim 1, the sole independent
claim, is illustrative of the subject matter on appeal and is reproduced below
with the key disputed limitation emphasized:
1. A crate for containers comprising:
a floor;
a lower wall portion extending upward from the floor; and
a plurality of tapered pylons about a periphery of the
floor and extending upward from the floor beyond an upper
surface of the lower wall portion, each pylon defining a cavity
between an inner wall and an outer wall, each pylon including a
rib transverse to the inner wall and the outer wall in the cavity,
the lowermost edge of the rib spaced above a plane defined by
the upper surface of the lower wall portion, each pylon further
including a slot in an upper surface of the pylon through the
inner wall and the outer wall, the slot defined by a bottom wall
and opposed side walls connecting the inner wall to the outer
wall, the slot substantially aligned with the rib.
EVIDENCE
The Examiner relies on the following evidence:
Koefelda US 5,465,843 Nov. 14, 1995
Apps US 5,842,572 Dec. 1, 1998
Hassell US 6,966,442 B2 Nov. 22, 2005

Appeal 2011-001495
Application 11/285,768

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REJECTIONS
Appellants seek review of the Examiner’s rejection of claims 1, 3, 4,
7, 8, 10, and 11 under 35 U.S.C. § 103(a) as unpatentable over Apps and
Koefelda. Ans. 3, App. Br. 2. The Examiner withdrew the rejection of
claim 11 under 35 U.S.C. § 112, first paragraph, and the rejection of claims
5 and 6 under 35 U.S.C. § 103(a). Ans. 3. Appellants request withdrawal of
the Examiner’s double patenting rejection following submission of a
terminal disclaimer on October 13, 2010. Reply Br. 1, Ans. 3.
ANALYSIS
Rejection of Claims 1, 3-8, 10, and 11 for Double Patenting
Based on the Terminal Disclaimer filed October 13, 2010, and
approved November 6, 2010, we reverse the double patenting rejection. See
In re Vogel, 422 F.2d 438 (CCPA 1970).
Rejection of Claims 1, 3, 4, 7, 8, 10, and 11 under 35 U.S.C. § 103(a)
Regarding independent claim 1, the Examiner finds that Apps
discloses a crate for containers comprising a floor, tapered pylons 58, each
pylon defining a cavity on its underside, with rib 29 in the cavity, each pylon
including a slot 44, 54 in the upper surface of the pylon, the slot aligned
(both vertically and along transverse section of sidewall) with the rib. Ans.
5. The Examiner finds that Apps does not disclose the lowermost edge of
the rib 29 spaced above a plane defined by the upper surface of the lower
portion. Id. The Examiner finds that Koefelda teaches a rib 80, 80' having
its lowermost edge spaced above a plane defined by the upper surface of the
lower portion. Id. In the Response to Arguments, the Examiner concludes
that it would have been obvious to decrease the vertical dimension of the rib
Appeal 2011-001495
Application 11/285,768

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so that the lowermost edge is spaced above the plane defined by the upper
surface of the lower portion to decrease the rib’s vertical height to reduce the
amount of rib material used and effectively reduce both material costs and
weight of the case. Ans. 7.
Regarding the Examiner’s stated reason for decreasing the vertical
dimension of Apps’ rib, Appellants argue that if the bottom edge of Apps’
rib 29 was altered to be higher than (spaced from) its lower wall portion, the
length of Apps’ rib 29 would have to be very small, weakening the case 10
and making it less functional. Reply Br. 2. The rib 29 would also be almost
completely detached from the lower wall portion 56. Id. We are not
persuaded by Appellants’ arguments that it would be non-obvious to
combine the teachings of Apps and Hassell. Appellants have provided no
intrinsic or extrinsic explanation regarding minimum vertical dimensions for
ribs that provide acceptable nestable crate strength. Appellants similarly
have not explained why detachment of Apps’ rib 29 from its lower wall 56
would be undesirable. Given the teachings of Apps and Koefelda, one
skilled in the art would understand that vertical placement of a crate rib
configured to rest in a slot of another crate is one aspect of nestable crate
design that determines how deeply the crate nests within similarly-structured
crates, and the results of altering the vertical placement/dimension of the rib
would be predictable. Further, Appellants do not direct us to any evidence
regarding unexpected criticality of the vertical depth and placement of the
claimed rib. We therefore sustain the Examiner’s rejection of claim 1 under
35 U.S.C. § 103(a). Claims 3, 4, 7, 8, 10, and 11 stand or fall with claim 1.
App. Br. 4-6. We therefore also sustain the rejection of claims 3, 4, 7, 8, 10,
and 11.
Appeal 2011-001495
Application 11/285,768

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DECISION
We REVERSE the rejection of claims 1, 3-8, 10, and 11 on the
ground of non-statutory obviousness-type double patenting as being
unpatentable over Hassell and Apps.
We AFFIRM the rejection of claims 1, 3, 4, 7, 8, 10, and 11 under 35
U.S.C. § 103(a) as unpatentable over Apps and Koefelda.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED-IN-PART

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