Ex Parte Konefal et al

Patent Trial and Appeal Board

Dec 24, 2013

11443329 (P.T.A.B. Dec. 24, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/443,329 05/30/2006 Robert S. Konefal 17953-01 4078
76254 7590 12/24/2013
REISING, ETHINGTON, BARNES, KISSELLE, P.C.
P.O. BOX 4390
TROY, MI 48099-4390
EXAMINER
SMALLEY, JAMES N
ART UNIT PAPER NUMBER
3781
MAIL DATE DELIVERY MODE
12/24/2013 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 ROBERT S. KONEFAL,
STEVEN R. WOLFE, and JOHN M. SHINGLE
____________________

Appeal 2011-009776
Application 11/443,329
Technology Center 3700
____________________

Before: STEFAN STAICOVICI, JAMES P. CALVE, and HYUN J. JUNG,
Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the rejection of claims
2, 4, 9, 13-16, and 21. App. Br. 3. Claims 1, 3, 5-8, 10-12, and 17-20 have
been cancelled. Id. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
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Application 11/443,329

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CLAIMED SUBJECT MATTER
Claims 14, 15, 16, and 21 are independent. Claim 16 is reproduced
below.
16. A package having child-resistant and non-child-
resistant modes of operation, which includes:
a container having an end with an open mouth
surrounded by a container wall with a central axis and an outer
surface surrounding said mouth, and at least one first lock
element extending radially outwardly from said wall, and
a closure that includes an annular base wall having inner
and outer peripheral edges, a cylindrical skirt extending from
said outer peripheral edge of said base wall, at least one second
lock element on said skirt, and a projection extending axially
from said inner peripheral edge of said base wall in a direction
opposite from said skirt, said projection having an annular
sidewall spaced radially inwardly from said outer peripheral
edge of said skirt,
said closure being adapted to be secured to said container
in a child-resistant mode of operation with said at least one
second lock element on said skirt releasably engaged with said
at least one first lock element on said container wall, and with
said inner peripheral edge of said base wall in engagement with
said outer surface of said container wall to bias said lock
elements in engagement with each other and to seal said
package,
said closure being adapted to be secured to said container
in a non-child-resistant mode of operation with said annular
sidewall of said projection received in plug-sealing engagement
within said container mouth,
said closure including a wall extending from said outer
peripheral edge of said base wall, said wall being of sufficient
length to radially outwardly cover said at least one first lock
element on said container by extending at least axially even
with said at least one first lock element when said projection is
received within the container mouth,
wherein said wall extends from said outer peripheral
edge of said base wall in a direction opposite from said skirt for
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Application 11/443,329

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engaging said at least one first lock element on said container in
said non-child-resistant mode of operation.

REJECTIONS
Claims 16 and 21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Akers (US 4,223,795; iss. Sep. 23, 1980), Morris (Re.
29,779; iss. Sep. 26, 1978), and Herr (US 4,526,281; iss. Jul. 2, 1985).
Claim 13 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Akers, Morris, Herr, and Kong (US 4,095,718; iss. Jun. 20, 1978).
Claims 9 and 15 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Akers, Morris, Herr, and Libit (US 3,923,181; iss. Dec. 2, 1975).
Claims 2, 4, and 14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Akers, Morris, Herr, and Bialobrzeski (US 4,153,172; iss.
May 8, 1979).
ANALYSIS
Claims 16 and 21 as unpatentable over Akers, Morris, and Herr
The Examiner found that Akers teaches a child-resistant package, as
claimed, except for a wall extending from the outer peripheral edge of the
base wall to cover at least one lock element on the container. Ans. 3. The
Examiner found that Morris teaches a flexible resilient wall 63 extending
from the outer peripheral edge of the base wall 61 to enable the closure to
engage the container bead/lock element 33 in a non-child resistant mode.
Ans. 3. The Examiner determined that it would have been obvious to
modify the closure of Akers by providing a wall and container bead of
Morris to enable the closure to engage the container in a non-child resistant
mode of operation as this arrangement is an integral component of the non-
child proof mode. Ans. 3, 9. The Examiner also determined that it would
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Application 11/443,329

4
have been obvious to change the size of the closure dome of Akers to fit into
the container mouth or to size the container mouth sized to fit the closure to
allow for a non-child resistant mode of operation as taught by Morris. Ans.
3, 9. The Examiner reasoned that by adding a wall 63 of Morris to Akers,
the entire dome would be covered and this modification would improve the
aesthetic appearance of the cap as would sizing the wall so that the lugs are
covered in the non-child resistant position by blocking unsightly bayonet
lugs from sight. Ans. 9-10.
Appellants argue that a skilled artisan would not have modified the
cap of Akers to include an extra wall as taught by Morris because adding an
extra wall is contrary to Akers’ stated objectives of minimizing the amount
of material for the cap and reducing the outer diameter of the cap. Reply Br.
3. Appellants also argue that Akers discloses that the cap dome has an outer
diameter generally the same as that of the container for aesthetic reasons so
adding an extra wall as proposed by the Examiner would produce a cap with
a larger size and require additional material, additional work, and increased
expense. Reply Br. 3, 4; see App. Br. 14-15. Appellants also assert that the
Examiner’s finding that adding a wall to Akers would improve the aesthetics
of Akers’ cap is not supportable in view of Akers’ disclosure that a cap of
the same outer diameter as the container improves the aesthetic appearance.
Reply Br. 4. Appellants further argue that a skilled artisan would not have
reduced the outer diameter of the cap of Akers to provide a plug-in sealing
arrangement because Akers illustrates such a plug-in seal in Figure 6 as prior
art and teaches away from this prior art arrangement by using an external
sealing arrangement as shown in Figure 5. App. Br. 15, 20.
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Application 11/443,329

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The Examiner has not established, by evidence or technical reasoning,
a sufficient factual basis to reasonably support the conclusion that a skilled
artisan would have had a reason to add an extra wall to the cap of Akers or
reduce the size of the cap so that it is insertable in the container when Akers
teaches that container caps with large, radial-overhanging skirts produce an
awkward and aesthetically displeasing appearance of the assembled package
and the cap dome 35 is sized to provide an inner wall of the same general
diameter as the inner diameter of the container at the mouth for aesthetic
reasons instead of using a prior art inner plug-in arrangement as in Figure 6.
Akers, col. 4, l. 60 to col. 5, l. 3; figs. 5, 6. An object of Akers’ invention is
to provide a package with a clean-cut, aesthetically pleasing appearance that
requires a minimum amount of material to fabricate the container and cap.
Akers, col. 1, ll. 30-47. We do not sustain the rejection of claims 16 and 21.
Claim 13 as unpatentable over Akers, Morris, Herr, and Kong
Claim 13, which depends from claim 16, recites features of the lock
element. The Examiner relied on Kong to disclose these features and not to
remedy any deficiencies in Akers, Morris, or Herr as to claim 16. Therefore,
we do not sustain the rejection of claim 13. See App. Br. 22.
Claims 9 and 15 as unpatentable over Akers, Morris, Herr, and Libit
Claim 15 recites a package with similar features as claim 16 and a
radially outwardly extending external bead. The Examiner relied on Akers,
Morris, and Herr to disclose the package features as in claim 16 and Libit to
disclose the claimed bead. See Ans. 6-7, 10-11. We agree with Appellants
that a skilled artisan would not have modified Akers in the manner proposed
by the Examiner for the reasons set forth supra for the rejection of claim 16.
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See App. Br. 24-25, 30-32. We do not sustain the rejection of claim 15 or
claim 9, which depends therefrom.
Claims 2, 4, and 14 as unpatentable over Akers, Morris, Herr, and
Bialobrzeski
Claim 14 recites a package with similar features as claim 16 and a
channel. The Examiner relied on Akers, Morris, and Herr to disclose the
package features as in claim 16 and Bialobrzeski to disclose the channel.
Ans. 7-8. We agree with Appellants that a skilled artisan would not have
modified Akers in the manner proposed by the Examiner for the reasons set
forth supra for the rejection of claim 16. See App. Br. 34-36, 42-43. We do
not sustain the rejection of claim 14 or its dependent claims 2 and 4.

DECISION
We REVERSE the rejections of claims 2, 4, 9, 13-16, and 21.

REVERSED

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