Ex Parte Holley

Patent Trial and Appeal Board

Sep 18, 2018

13836804 (P.T.A.B. Sep. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/836,804 03/15/2013
26158 7590 09/20/2018
WOMBLE BOND DICKINSON (US) LLP
ATTN: IP DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037
FIRST NAMED INVENTOR
John Murdick Holley JR.
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.
R029 17170US.l 5656
EXAMINER
VAN BUSKIRK, JAMES M
ART UNIT PAPER NUMBER
3788
NOTIFICATION DATE DELIVERY MODE
09/20/2018 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):
IPDocketing@wbd-us.com
BostonPatents@wbd-us.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN MURDICK HOLLEY, JR. 1
Appeal2017-005876
Application 13/836,804
Technology Center 3700
Before MICHAEL L. HOELTER, MICHELLE R. OSINSKI, and
SUSAN L. C. MITCHELL, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1, 3, 4, 7-14, 17, 19, 20, and 23-30 under
35 U.S.C. § 103(as) as unpatentable over Brand (US 2007 /0131748 Al, pub.
June 14, 2007). 2 Final Act. 2-9. We have jurisdiction under 35 U.S.C.
§ 6(b).
1 Graphic Packaging International, Inc. ("Appellant") is the Applicant as
provided in 37 C.F.R. § 1.46 and is identified as the real party in interest.
Appeal Br. 1.
2 Claims 2, 5, 6, 18, 21, 22, 35, and 36 are cancelled, and claims 15, 16, 31-
34, and 37-39 are withdrawn from consideration. Amendment B and
Response to Office Action (Dec. 18, 2015), 2-9.
Appeal2017-005876
Application 13/836,804
We REVERSE.
THE CLAIMED SUBJECT MATTER
Claims 1 and 17 are independent. Claim 1, reproduced below, is
illustrative of the claimed subject matter on appeal.
1. A carton for holding a plurality of containers, the carton
compnsmg:
a plurality of panels that extends at least partially around
an interior of the carton;
at least one end flap foldably connected to at least one
panel of the plurality of panels, the at least one end flap at least
partially forming a closed end of the carton;
at least one handle comprising at least one handle flap
foldably connected to the at least one end flap along a first fold
line, the at least one handle flap being generally coplanar with
the at least one end flap, the at least one handle flap comprising
a grip portion at least partially defined by the first fold line and a
second fold line extending in the at least one handle flap, wherein
the first fold line and the second fold line are nonparallel, the first
fold line comprises an arcuate fold line, and the second fold line
comprises an opposing arcuate fold line that generally mirrors
the arcuate fold line.
OPINION
The Examiner finds that Brand discloses, inter alia:
at least one end flap ... (12, 32, Fig. 7), ... at least one handle
(11, Fig. 7) comprising at least one handle flap (i-f 27) foldably
connected to the at least one end flap along a first fold line (133,
Fig. 7), ... the at least one handle flap comprising a grip portion
( 134, Fig. 7) at least partially defined by the first fold line and a
second fold line extending in the at least one handle flap (i-f 27),
... wherein the first fold line comprises an arcuate fold line (134,
Fig. 7) and the second fold line comprises an opposing arcuate
fold line that generally mirrors the arcuate fold line (137, Fig. 8).
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Appeal2017-005876
Application 13/836,804
Final Act. 2-3. The Examiner reiterates in the Answer that "the
second fold line/opposing arcuate fold line is recited as reference no.
137 in Fig. 8." Ans. 5. The Examiner also finds that "[p]aragraph 27
of Brand definitely indicates that reference no. 137 is a fold line." Id.
at 7 ( citing Brand ,r 27).
Appellant points out that element 137 of Brand is not a fold line
as the Examiner asserts, but instead is a comfort panel, "which is
connected to the top end flap 56" on an opposite side of blank 3. See
Brand Fig. 1. Brand's item 137 is, upon assembly, positioned
alongside and "overlaps the elongate comfort panel 134 and obscures
the fold lines 133, 138 in the view of Figure 8." Appeal Br. 16; see
also Reply Br. 4 (noting that "the lead line of reference number 137
points to the comfort panel that is connected to the top end flap 5 6" on
an opposite side of blank 3 and "[t]he comfort panel 137 is not a fold
line extending in the handle flap 131," i.e., item 137 is not a part of
handle flap 131). Appellant argues that "Brand is completely void of
any showing or suggestion of a handle flap ... that has an arcuate fold
line and an opposing arcuate fold line that generally mirrors the
arcuate fold line." Appeal Br. 16.
We agree with Appellants that the Examiner erred in finding that
element 137 meets the claimed limitation of a "second fold line," and
especially "a second fold line extending in the at least one handle flap" as
recited. Even assuming arguendo that element 137 is a fold line, the claim
requires the second fold line to "extend[] in the at least one handle flap" and
further requires the "at least one handle flap [to be] foldably connected to the
at least one end flap along a first fold line" and to "compris[ e] a grip portion
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Appeal2017-005876
Application 13/836,804
at least partially defined by the second fold line." Appeal Br. 22 (Claims
App'x.). The Examiner has not adequately explained how element 137 of
Brand (forming a part of separate end flap 56) also extends in a handle flap
that (1) is foldably connected to different end flap 32 along the identified
first fold line 133 and (2) comprises identified grip portion 134, as required
by the claims.
Brand discloses that element 137 is "foldably attached to the top end
flap [56] at a fold line 139." Brand ,r 27; see also id. Fig. 1. Element 137,
thus, is a panel that extends from top end flap 56. Top end flap 56, however,
cannot be the claimed handle flap because that top end flap 56 (1) is not
foldably connected to end flap 32 along the identified first fold line 133 and
(2) does not comprise identified grip portion 134.
The only element of Brand that arguably meets the requirements of
the claimed handle flap is Brand's elongate handle flap 13 1 that ( 1) is
foldably connected to end flap 32 along the identified fold line 133 and (2)
comprises identified grip portion 134. Element 137, however, cannot be
considered to extend in handle flap 131 because element 13 7 is part of an
opposite end of blank 3 and not a part of handle flap 131. At most, element
137 might be considered to (i) extend through an opening 139 created when
handle flap 131 is folded inward and (ii) extend over and/or overlap with
grip portion 134 of element 131. Element 137 itself, however, does not
"extend[] in" handle flap 131, as required by the claim. Thus, the
Examiner's finding that Brand discloses a second fold line extending in the
at least one handle flap in accordance with claim 1 is not supported by a
preponderance of the evidence.
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Appeal2017-005876
Application 13/836,804
The Examiner's conclusion of obviousness is based on an erroneous
finding as to the scope and content of Brand. For the foregoing reasons, we
determine that the Examiner erred in concluding that Brand renders obvious
the subject matter of independent claim 1. Accordingly, we do not sustain
the rejection of claim 1, and of claims 3, 4, and 7-14 depending therefrom,
under 35 U.S.C. § 103(a) as unpatentable over Brand. Because the
Examiner relies on the same deficient finding in connection with
independent claim 17 (Final Act 5---6; Ans. 4), we also do not sustain the
rejection of claim 17, and of claims 19, 20, and 23-30 depending therefrom,
under 35 U.S.C. § 103(a) as unpatentable over Brand.
DECISION
The Examiner's decision to reject claims 1, 3, 4, 7-14, 17, 19, 20, and
23-30 under 35 U.S.C. § 103(a) as unpatentable over Brand is reversed.
REVERSED
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