Ex parte KUBITZ

Board of Patent Appeals and Interferences

Jul 29, 1998

07789802 (B.P.A.I. Jul. 29, 1998)

Application for patent filed November 12, 1991. The1
application is a continuation of Application 07/233,856, filed
August 18, 1988, now abandoned, which is a continuation of
Application 06/936,613, filed December 01, 1986, now
abandoned.
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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 56
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte TERRY E. KUBITZ
________________
Appeal No. 97-2116
Application 07/789,8021
________________
ON BRIEF
________________
Before STONER, Chief Administrative Patent Judge, McCANDLISH,
Senior Administrative Patent Judge and STAAB, Administrative
Patent Judge.
STAAB, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 97-2116
Application 07/789,802
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This is a decision on an appeal from the examiner’s final
rejection of claims 1, 3, 5-10, 12-14 and 16-25, all the
claims pending in the application. We affirm-in-part.
By way of background, this is the third appeal of the
subject matter disclosed in this application. In the parent
of the present application, this merits panel, in a decision
rendered March 18, 1991, affirmed-in-part the examiner’s final
rejection of the claims appealed therein. Appellant then
filed the present continuation application for the purpose of
further prosecution before the examiner. There followed a
second appeal. In a decision rendered September 16, 1993,
this merits panel reversed the examiner’s rejection of all the
appealed claims. The examiner, with the group director’s
approval, then reopened prosecution and entered a number of
new rejections against the claims then pending, which
ultimately resulted in this third appeal.
Appellant’s invention pertains to a thin walled metal
container (claims 1, 3, 5-9 and 25) and to a method of making
a container (claims 10, 12-14 and 16-24), and in particular to
the provision of a thermoplastic sleeve of heat shrinkable
Appeal No. 97-2116
Application 07/789,802
With respect to each of the rejections involving Cvacho ‘4232
(rejections (c), (d), (e), (g) and (h)), we note the following statement found
on pages 11-13 of the answer:
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material around the body of the container for increasing the
axial load bearing capacity thereof. The invention is said to
enable the
use of thinner gauge metal than heretofore considered possible
in such containers. Independent claims 1 and 10, copies of
which are found in the appendix to appellant’s brief, are
illustrative of the appealed subject matter.
The references of record relied upon by the examiner in
support of rejections under 35 U.S.C. § 102(b) and 35 U.S.C. §
103 are:
Potts 3,698,596 Oct. 17, 1972
Cvacho (‘423) 3,799,423 Mar. 26, 1974
Cvacho et al. (Cvacho ‘927) 4,151,927 May 1, 1979
Nixon et al. (Nixon) B 223,678 Mar. 9, 1976
Sasaki et al. (Sasaki) 3,972,435 Aug. 3, 1976

Conklin 4,138,026 Feb. 6, 1979
Heckman 4,248,030 Feb. 3, 1981
Roales 4,608,284 Aug. 26, 1986
Hoffman 4,844,957 Jul. 4, 1989
The following rejections are before us for review:2
Appeal No. 97-2116
Application 07/789,802
The patents to Cvacho et al [‘927] and Nixon et al are to be
additionally considered part of the rejections, supra, under 35
U.S.C. § 103 where Cvacho [‘423] has been applied . . . .
Appellant alleges [that] the thin inner container of Cvacho [’423]
is made of paper or plastic and would collapse if squeezed by a
shrunk sleeve. . . . To the degree appellant has continued to
argue this issue, Cvacho et al [‘927] and Nixon et al are to be
considered additionally applied to the 35 U.S.C. § 103 rejections
involving Cvacho [‘423] as evidence that the inner sleeve in
Cvacho [‘423] does indeed
have structural strength for the modifications provided in the
rejections to provide a shrink wrap.
In that Cvacho [‘927] and Nixon were never mentioned in the statement of
the rejection of any of the claims prior to the examiner’s answer, it is
apparent that the inclusion of these references at this point constitutes new
grounds of rejection, notwithstanding the examiner’s views to the contrary
and/or appellant’s acquiescence on this point. In any event, in the interest
of rendering a complete decision on the issues raised in the appeal, we shall
consider Cvacho ‘927 and Nixon as part of the evidentiary basis in the
rejections where Cvacho ‘423 has been applied.
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(a) claims 1, 3, 5, 6 and 8, rejected under 35 U.S.C. §
102(b), as being anticipated by Roales;
(b) claims 7 and 9, rejected under 35 U.S.C. § 103, as
being unpatentable over Roales in view of Conklin;
(c) claims 1, 3, 5 and 8, rejected under 35 U.S.C. § 103,
as being unpatentable over Cvacho ‘423 in view of Hoffman, and
further in view of Cvacho ‘927 and Nixon;
Appeal No. 97-2116
Application 07/789,802
On page 7 of the answer, the examiner appears to have3
inadvertently failed to include Roales and Potts in the
statement of the rejection of these claims.
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(d) claim 6, rejected under 35 U.S.C. § 103, as being
unpatentable over Cvacho ‘423 in view of Hoffman, Cvacho ‘927
and Nixon as applied in rejection (c), and further in view of
Roales and Potts;
(e) claims 7 and 9, rejected under 35 U.S.C. § 103, as
being unpatentable over Cvacho ‘423 in view of Hoffman, Cvacho
‘927,
Nixon, Roales and Potts as applied in rejection (d), and
further in view of Conklin;3
(f) claim 20, rejected under 35 U.S.C. § 102(b), as being
anticipated by Hoffman;
(g) claims 10, 12-14, 16 and 19-24, rejected under 35
U.S.C. § 103, as being unpatentable over Hoffman in view of
Cvacho ‘423 and Roales, and further in view of Cvacho ‘927 and
Nixon;
Appeal No. 97-2116
Application 07/789,802
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(h) claims 17 and 18, rejected under 35 U.S.C. § 103, as
being unpatentable over Hoffman in view of Cvacho ‘423,
Roales, Cvacho ‘927 and Nixon as applied in rejection (g), and
further in view of Sasaki;
(i) claim 25, rejected under 35 U.S.C. § 102(b), as being
anticipated by Heckman;
(j) claim 25, rejected under 35 U.S.C. § 103, as being
unpatentable over Heckman in view of Roales; and
(k) claim 25, rejected under 35 U.S.C. § 103, as being
unpatentable over Roales in view of Heckman.
The rejections are explained in the examiner’s answer
(Paper No. 52, mailed August 16, 1996) and the supplemental
examiner’s answer (Paper No. 54, mailed November 14, 1996).
The opposing viewpoints of appellant are set forth in the
brief (Paper No. 51, filed June 14, 1996) and the reply brief
(Paper No. 53, filed October 16, 1996).
Rejections (a) and (b)
Considering first the rejection of claims 1, 3, 5, 6 and
8 as being anticipated by Roales, independent claim 1 requires
that the thermoplastic sleeve that surrounds at least a
Appeal No. 97-2116
Application 07/789,802
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portion of the tubular container body is “shrunk thereon for
radially inwardly squeezing said container body for increasing
the axial strength thereof.” In rejecting claim 1 as being
anticipated by Roales, the examiner has taken the position
with respect to this claim limitation that “[b]y its very
nature the shrunk protective sleeve [of Roales] will apply a
compressive force to increase the axial strength of the inner
container” (answer, page 5). It thus appears to be the
examiner’s position that the label 42 of Roales will
inherently function in the manner called for in claim 1. We
cannot accept this position.
A careful reading of the specification of Roales
indicates that the label thereof is secured to a container by
adhering the leading end of the label to the container,
wrapping the label about the container, and adhering the
overlapping leading and trailing ends of the label to each
other (column 4, lines 42-45
and 60-62; column 6, lines 6-10). The top and bottom of the
label are thereafter shrunk into conformation with the tapered
top and bottom portions of the container sidewall (column 5,
Appeal No. 97-2116
Application 07/789,802
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lines 2-4; column 6, lines 57-61; column 4, lines 45-65) to
provide tapered portions 44 and 46 conforming to tapered
portions 34 and 36 of the container. Reference letters A and
B in Figure 2 indicate the magnitude of the deflection of the
label at the upper and lower tapered portions, respectively,
of the container.
While it reasonably appears that the label of Roales
would squeeze the container side wall, at least to some
degree, in the areas where it is shrunk into contact
therewith, i.e., at the upper and lower tapered portions 34
and 36, Roales is silent as to the label functioning to
radially inwardly squeeze the container body “for increasing
the axial strength thereof,” as required by claim 1. Further,
the label of Roales is not stated to be for this purpose.
See, for example, the objectives listed in Roales at column 2,
line 55 through column 3, line 22. Finally, the examiner has
not provided any evidence or scientific reasoning to establish
the reasonableness of his belief that the functional
limitation in question is an inherent characteristic
Appeal No. 97-2116
Application 07/789,802
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of Roales. In this regard, merely stating that the label of
Roales, which is shrunk onto the container only at the tapered
end portions of the container, will by its very nature
function in the manner called for in the claim does not
suffice. In light of the foregoing, we will not sustain the
examiner’s rejection of claim 1 as being anticipated by
Roales, or claims 3, 5, 6 and 8 which depend therefrom.
Claims 7 and 9 depend from claim 1 and add that the
thermoplastic sleeve is formed of polyester material and
polyethylene terephthalate, respectively. In rejecting these
claims, the examiner has additionally relied on Conklin for a
teaching that these material are well known heat shrinkable
materials. Even if we accept that it would have been obvious
to make the sleeve of Roales of the materials called for in
claims 7 and 9 in view of Conklin’s teaching, the resulting
modified Roales article would not necessarily correspond to
the subject matter of claim 1, much less claims 7 and 9. See
the discussion supra of claim 1. Furthermore, the examiner
has not explained, and it is not apparent to us, where the
combined teachings of Roales and Conklin disclose, suggest or
Appeal No. 97-2116
Application 07/789,802
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imply that the label of Roales should be shrunk onto the
container to increase the axial strength thereof.
Accordingly, we will not sustain the rejection of claims 7 and
9 as being unpatentable over the combined teachings of Roales
and Conklin.
Rejections (c), (d) and (e)
Fundamental to each of these rejections is the examiner’s
position that it would have been obvious to one of ordinary
skill in the art to shrink the load bearing outer housing 16
of Cvacho ‘423 to the thin metal inner container 12 thereof in
view of Hoffman as a method of expediently applying the outer
housing to the inner container, and thereby arrive at the
subject matter of independent claim 1. We do not agree.
Cvacho ‘423, the primary reference, pertains to a
laminated container comprising a very thin inner container 12
made of fluid-impervious metallic foil (column 2, line 13;
column 4, lines 25-30) and a outer structural housing 16 made
of comparatively inexpensive non-metallic material such as
paper or “a suitable plastic” (column 4, lines 19-21 and 41-
Appeal No. 97-2116
Application 07/789,802
In the statement of the rejection on page 6 of the answer, the4
examiner implies that Cvacho ‘423 discloses the outer housing as being made of
thermoplastic material, however, this is not the case. Rather, Cvacho ‘423
merely states that the outer housing may be made of paper or “a suitable
plastic” (column 4, line 21).
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44). Cvacho ‘423 does not even remotely hint that the outer4
housing 16 may be shrunk onto the thin foil inner container 12
to increase its axial strength. The examiner than looked to
another prior art
container, Hoffman, which, although including a sleeve shrunk
fit onto a container body, also does not even remotely hint
that the axial strength of the body of the container may be
increased by shrinking the outer sleeve thereover. From these
disclosures, the examiner concludes that it would have been
obvious to arrive at the subject matter of claim 1 by shrink
fitting the outer housing of Cvacho ‘423 over the thin inner
container made of metallic foil.
Like appellant, we question at the outset whether it is
feasible to shrink fit a plastic outer sleeve over the thin
foil inner container 12 of Cvacho ‘423 without crushing it.
In this regard, we share appellant’s view that the disclosure
of Cvacho ‘423 that the inner container 12 should be made of
Appeal No. 97-2116
Application 07/789,802
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thin metal foil would act as a disincentive to one of ordinary
skill in the art to make the sort of modification proposed by
the examiner. Nothing in Cvacho ‘927 or Nixon lead us to a
different conclusion. In particular, we simply do not agree
with the examiner’s statement that “[i]f such a thickness of a
metallic container [i.e., the thickness of the metallic inner
container disclosed in Cvacho ‘423 at column 4, line 53] can
withstand an
internal pressure . . . it can withstand an external pressure
of a shrunk sleeve on its exterior” (supplemental answer, page
2).
Turning to Hoffman, we observe that this reference is
directed to:
Apparatus and method for applying heat shrinkable
film to containers . . . [wherein, a] segment of
film is applied to the vertical surface [of the
container] without heat shrinking [i.e., by adhering
the leading end of a segment of film to the
container, wrapping the film around the bottle, and
adhering the trailing end to the leading end] and
with one or two end portions overlapping the re-
entrant part of the article[,] . . . [h]eat [being]
applied to the overlap or overlaps to shrink them
Appeal No. 97-2116
Application 07/789,802
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onto the article. [abstract, emphasis added]
Thus, the thrust in Hoffman is to apply heat locally to the
overlapped upstanding end portions 20, 21 of the label to
shrink these overlapped end portions to re-entrant portions of
the container. Since the container of Cvacho ‘423 is not
disclosed to have any re-entrant (i.e., reduced diameter)
portions, and thus would not require any localized heating of
the outer housing 16 to bring it into close contain with the
inner container at the ends of the outer housing, it is not
clear that one of ordinary skill in the art would consider
Hoffman’s teachings as being relevant to Cvacho ‘423. In any
event, assuming that it would have been obvious to apply
Hoffman’s teachings in Cvacho ‘423, and further assuming that
locally shrinking the outer housing to the inner foil
container of Cvacho ‘423 would not crush the thin foil inner
container, it is questionable whether Hoffman’s localized
heating and shrink fitting techniques would result in
increasing the axial strength of the thin foil inner container
of Cvacho ‘423 as called for in claim 1.
For these reasons, we cannot sustain the rejection of
Appeal No. 97-2116
Application 07/789,802
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claim 1, or claims 3, 5 and 8 which depend therefrom, as being
unpatentable over Cvacho ‘423 in view of Hoffman, Cvacho ‘927
and Nixon. The Roales and Potts references additionally
applied in the rejection of claim 6 (rejection (d)), and the
Conklin reference additionally applied in the rejection of
claims 7 and 9 (rejection (e)), do not make up for the
deficiencies of the references applied in the rejection of
claims 1, 3, 5 and 8. Therefore, these rejections also cannot
be sustained.
Rejection (f)
Independent method claim 20 stands rejected as being
anticipated by Hoffman. The method of claim 20 comprises the
steps of providing a container having at least one open end
for filling with a product, encircling at least a portion of
the
container with a thermoplastic film, and subjecting the film
to elevated temperature and shrinking the film for applying
compressive force to the container radially prior to filling
and prior to applying an end closure to the open end.
Hoffman pertains to a system for applying heat shrink
Appeal No. 97-2116
Application 07/789,802
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film to containers. The portion of Hoffman relied upon by the
examiner in the rejection is found in the background
discussion at column 1, lines 21-34 and reads:
Heretofore apparatus and a method have been
provided for applying heat shrink film to
cylindrical containers by a series of steps as
follows:
1. Heat shrink film is formed into a tube slightly
larger in diameter than the container to which
it is to be applied.
2. The container is preheated or, if the film
application is carried on in conjunction with
the manufacture of glass containers, the glass
containers can be taken from the glass
manufacturing operation while they are still hot
or warm.
3. The cylindrical sleeve is placed over the
container.
4. The sleeve is then heated to shrink it onto the
container.
We are in agreement with the examiner that the practice
of this method, especially as it relates to applying a heat
shrink film to glass containers taken from a glass
manufacturing operation, anticipates claim 20. In particular,
we believe the steps of placing a cylindrical tube of heat
shrink material on a container and then heating it to shrink
the tube onto the container would inherently apply compressive
Appeal No. 97-2116
Application 07/789,802
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force to the container body radially thereof, as called for in
step (c) of claim 20, at least to some degree.
Appellant’s argument on page 10 of the brief is not
persuasive that the examiner erred in making this rejection.
With respect to appellant’s statement that claim 20 “was
allowed by the Board in the Decision of September 16, 1993 . .
. over the teachings of the patents to Yazumi and Kaercher et
al,” we must point out that we did not allow claim 20 in that
decision. Rather, we reversed the examiner’s § 103 rejection
thereof based on Yazumi and Kaercher. As to the argument that
“no mention is made about axial strength of the container [in
Hoffman]” (brief, page 10), this argument fails at the outset
because it is not commensurate in scope with the claim. Note
that claim 20 only calls for shrinking the film for applying a
compressive force to the container body radially thereof.
We will therefore sustain the anticipation rejection of
claim 20 based on Hoffman.
Rejections (g) and (h)
Independent method claim 10 calls for the steps of (a)
providing a container body having an open end, (b) encircling
Appeal No. 97-2116
Application 07/789,802
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the container body with a thermoplastic film, (c) subjecting
the film to elevated temperature and shrinking it for applying
compressive force to the container body radially thereof, (d)
placing an end closure on the container body and applying an
axial force to the end closure and container body for securing
the end closure to the container body, and (e) locating a
portion of the thermoplastic film between the container body
and the end closure and entrapping said portion during step
(d).
In rejecting this claim, the examiner considers (answer,
pages 8-11) that it would have been obvious to (1) employ the
prior art method of column 1, lines 24-34 of Hoffman to a
container of the type described in column 2, lines 9-10 and
lines 23-24 of Hoffman, (2) fill the container with a product
after the shrunk sleeve is applied as “implied in Cvacho
[’423]” (answer, page 8), (3) thereafter forcibly apply an end
closure to the container, and (4) locate, i.e., entrap, the
sleeve between the container body and the container end
closure in the manner called for in claim 10 in view of Figure
5 of Cvacho ‘423. In our opinion, this rejection amounts to a
hindsight reconstruction of the claimed method using the
Appeal No. 97-2116
Application 07/789,802
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appellant’s disclosure as a roadmap. In particular, it is our
opinion that the collective teachings of the applied
references do not disclose, suggest or imply the step of
locating a portion of the shrunk film between the container
body and container end closure and entrapping that portion
therebetween during the step of applying an axial force to
secure an end closure to a container body, as called for in
step (e) of claim 10. We therefore will not sustain the
rejection of claim 10, or any of claims 12-14 and 16-19 that
depend therefrom.
As for the rejection of independent claim 20 based on
Hoffman, Cvacho ‘423, Roales, Cvacho ‘927 and Nixon under §
103, as made clear in our discussion of rejection (f) supra,
claim 20 lacks novelty over the prior art method set forth in
column 1, lines 21-34 of Hoffman. While we appreciate that
the examiner has expressed the rejection in terms of
obviousness, we note that evidence (i.e., Hoffman)
establishing lack of novelty in the claimed invention
necessarily evidences obviousness. Lack of novelty has been
characterized by one of the predecessors of our court of
review as being the ultimate or epitome of obviousness. See
Appeal No. 97-2116
Application 07/789,802
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In re Fracalossi, 681 F.2d 792, 794, 215 USPQ 569, 571 (CCPA
1982) and In re Pearson, 494 F.2d 1399, 1402, 181 USPQ 641,
644 (CCPA 1974). We therefore will sustain the examiner’s
rejection of claim 20 under § 103, noting that Cvacho ‘423,
Roales, Cvacho ‘927 and Nixon are cumulative. We will also
sustain the rejection of dependent claim 24 since appellant
acknowledges on
page 5 of the brief that this claim stands or falls with claim
20.
Claim 21 depends from method claim 20 and add the step of
“forming said container body of thin gauge material incapable
of resisting the axial forces applied during conventional
filling and closing operations . . . .” Appellant’s sole
argument with respect to this claim is that it differs from
parent claim 20 “by defining the use of thin gauge material .
. . [which is] not discussed by the applied art” (brief, page
11). The term “thin gauge material” is a relative term.
Further, the use of a relatively thin gauge material for a
container body is discussed in the prior art, for example, in
Cvacho ‘423 at column 4, lines 48-52. In our view, it would
Appeal No. 97-2116
Application 07/789,802
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have been obvious to make the container of Hoffman of
relatively thin material for the self evident purpose of
effecting a cost savings by minimizing the amount of material
needed to make the container. Accordingly, as argued, we will
sustain the § 103 rejection of claim 21 based on Hoffman and
the other references cited thereagainst in rejection (g).
We likewise will sustain the rejection of dependent claim
22 based on Hoffman and the other references cited
thereagainst in rejection (g) since this claim has not been
separately argued with any reasonable degree of specificity in
the argument with respect to claims 21-23 found on page 11 of
the brief. See, for example, In re Nielson, 816 F.2d 1567,
1572, 2 USPQ2d 1525, 1528 (Fed. Cir. 1987).
We will not sustain the rejection of dependent claim 23
based on Hoffman and the other references cited thereagainst
in rejection (g) since we agree with appellant that the
applied prior art does not suggest the additional step of
locating the thermoplastic film between the container body and
the end closure and entrapping said portion during the step of
sealing the container with the end closure, as called for in
Appeal No. 97-2116
Application 07/789,802
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this claim.
Rejections (i), (j) and (k)
With respect to the anticipation rejection of claim 25
based on Heckman (rejection (i)), the only claim limitation
argued by appellant as distinguishing over Heckman is the
requirement that the thermoplastic sleeve is shrunk onto the
container body “for radially inwardly squeezing said container
body . . . for increasing the axial strength of the
container.” Appellant contends that Heckman’s sleeve 20 does
not do this, whereas the examiner maintains that the sleeve of
Heckman inherently increases axial strength when applied to a
plastic container.
Heckman pertains to a method for assembling a plastic
sleeve preform to a container. The preform comprises a
tubular sleeve made of heat shrinkable plastic. The method of
assembling the sleeve to a container involves several steps,
which are illustrated in Figures 7-10. In Figure 7, the
sleeve is positioned such that it loosely surrounds the
container. Next, see Figure 8, a hot air stream is directed
at the sleeve center region to shrink the central region of
Appeal No. 97-2116
Application 07/789,802
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the sleeve into contact with the container “to tack the sleeve
against the container mid-body portion during continuing
rotation of container and sleeve” (column 5, lines 53-55).
Such tacking “effect[s] heat-shrinkage of the extensive
central region” (column 5, lines 57-58). Then, as shown in
Figure 9, heat is applied to the upper and lower extremities
of the sleeve to cause the sleeve to contract around the heel
and frusto-conical neck regions of the container to achieve
the final product. Heckman states that “[t]he sleeve 20a when
heat shrunk in this manner is wrinkle-free and smoothly
adhered to the container surface therebeneath is [sic, in]
snug conforming relation as shown in Fig. 10” (column 5, line
66 through column 6, line 2; emphasis added).
We agree with the examiner that Heckman’s disclosure that
the sleeve is heat shrunk to the container over substantially
the full extent of the container so as to be in snug
conforming relation with the container surface provides a
reasonable basis for concluding that Heckman’s sleeve will
inherently function, at least to some degree, to squeeze the
container to increase its axial strength. See In re
Appeal No. 97-2116
Application 07/789,802
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Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 229 (CCPA 1971).
In this regard, we observe that the claim does not specify to
what extent the axial strength is increased, such that any
increase in axial strength will satisfy this claim
requirement.
Appellant argues that Heckman’s description “of ‘tacking’
the central portion to prevent vertical movement and then
causing the ends of the sleeve to be ‘in snug conforming
relation’, falls woefully short of anticipating applicant’s
claimed invention of squeezing to increase axial strength”
(brief, page 9). This argument is not well taken because it
mischaracterizes Heckman’s disclosure. The sentence bridging
columns 5 and 6 of Heckman indicates that the sleeve itself,
and not merely end portions thereof, is in snug conforming
relation with the container. A sleeve that is heat shrunk
throughout its axial extent to snugly conform to a substantial
portion of the container body, as shown by Heckman in Figure
10, will squeeze the container and inherently increase its
axial strength, at least to some degree, in our view. We
therefore will sustain the anticipation rejection of claim 25
Appeal No. 97-2116
Application 07/789,802
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based on Heckman.
With respect to the § 103 rejections of claim 25 based on
Heckman and Roales, we again note that evidence establishing
lack of novelty in the claimed invention necessarily evidences
obviousness. See In re Fracalossi, 681 F.2d at 794, 215 USPQ
5 at 571 and In re Pearson, 494 F.2d at 1402, 181 USPQ at 644.
In that claim 25 lacks novelty over Heckman for the reasons
noted above, we will sustain the examiner’s rejections of
claim 25 under § 103 as being unpatentable over Heckman and
Roales (rejections (j) and (k)), noting that Roales is merely
cumulative in these rejections.
Summary
The rejection of claim 20 as being anticipated by Hoffman
(rejection (f)) is affirmed.
The rejection of claims 10, 12-14, 16, 19-24 as being
unpatentable over Hoffman in view of Cvacho ‘423 and other
references (rejection (g)) is affirmed as to claims 20-22 and
24, but is reversed as to claims 10, 12-14, 16, 19 and 23.
The rejection of claim 25 as being anticipated by Heckman
(rejection (i)), and the rejections of claim 25 as being
Appeal No. 97-2116
Application 07/789,802
-25-
unpatentable over Heckman and Roales (rejections (j) and (k))
are also affirmed.
All other rejections (rejections (a) through (e) and (h))
are reversed.
The decision of the examiner is affirmed-in-part.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
BRUCE H. STONER )
Chief Administrative Patent Judge )
)
)
)
HARRISON E. McCANDLISH ) BOARD OF PATENT
Senior Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
LAWRENCE J. STAAB )
Administrative Patent Judge )
Appeal No. 97-2116
Application 07/789,802
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William H. Holt
727 Twenty-Third Street South
Arlington, VA 22202