Ex parte Leibowitz

Board of Patent Appeals and Interferences

Sep 28, 1998

08254973 (B.P.A.I. Sep. 28, 1998)

Application for patent filed June 7, 1994. 1
-1-
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(2) is not binding precedent of the Board.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. 18
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte ALISSA LEIBOWITZ
____________
Appeal No. 97-1883
Application 08/254,9731
____________
ON BRIEF
____________
Before CALVERT, Administrative Patent Judge, McCANDLISH, Senior
Administrative Patent Judge, and CRAWFORD, Administrative Patent
Judge.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the examiner’s final
rejection of claims 1, 2, 4 and 7-10. Claims 3, 5 and 6 have
been canceled.
Appeal No. 97-1883
Application 08/254,973
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The appellant’s claimed subject matter is an ergonomic
container for fluids. Claim 1 is exemplary of the subject matter
on appeal and recites:
1. An ergonomic container for fluids, comprising:
a generally rectangular, hollow body having a U-shaped top
section, a first side wall, a second side wall, a front wall and
a rear wall, wherein the bottom and rear walls are perpendicular
to each other and have generally planar surfaces such that the
container can stably support itself in either a horizontal or
vertical orientation;
a first rounded edge between the front wall and the top
section;
a second rounded edge having an enhanced curvature located
between the front wall and the bottom wall;
an angled spout located on the first rounded edge; and
a hollow handle portion connected to the U-shaped top such
that it is approximately half-way between the front and rear
walls, half-way between the first and second side walls and near
the center of gravity of a full container, wherein liquid may
flow through the hollow handle portion and wherein the size of
the handle permits a diverse mix of individuals to acquire a
complete hand grip;
and wherein when the bottom of the container is resting on
a surface a user may pour liquid by grasping the handle and
rolling the container about the second rounded edge in contact
with the surface.

THE REFERENCE
The examiner has relied on the following reference:
Howlett 3,250,434 May 10, 1966
Appeal No. 97-1883
Application 08/254,973
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THE REJECTION
Claims 1, 2, 4, and 7-10 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Howlett.
Rather than reiterate the entire arguments of the appellant
and the examiner in support of their respective positions,
reference is made to the appellant's brief (Paper No. 9) and
reply brief (Paper No. 12) and the examiner’s answer (Paper No.
10) for the full exposition thereof.
OPINION
In reaching our conclusions on the issues raised in this
appeal, we have carefully considered appellant's specification
and claims, the applied reference, and the respective viewpoints
advanced by the appellant and the examiner. As a consequence of
our review, we have made the determination that the rejection of
the examiner should not be sustained.
We initially note that a rejection based on 35 U.S.C.
§ 103 must rest on a factual basis, with the facts being
interpreted without hindsight reconstruction of the invention
from the prior art. In making this evaluation, the examiner has
initial burden of supplying the factual basis for the rejection.
To meet this burden, the examiner must establish why one of
ordinary skill in the art would have been led to the claimed
Appeal No. 97-1883
Application 08/254,973
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invention by the expressed or implied suggestions found in the
prior art. In re Sernaker, 702 F.2d 989, 994, 217 USPQ 1, 5
(Fed. Cir. 1983). The examiner may not, because he or she doubts
that the invention is patentable, resort to speculation,
unfounded assumptions or hindsight reconstruction to supply
deficiencies in the factual basis. See In re Warner, 379 F.2d
1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
In the instant case, it is the examiner's opinion that
Howlett shows all the structure of the device recited in the
claims except the specific shape, angle and material. The
examiner states:
...Howlett shows the corners are substantial round
since they are not completely square. Moreover such
specific shape would be considered as an obvious matter
of design as no specific unobvious nor unexpected
results are seen. The mere change of the shape is pure
a design of choice. It would have been obvious to one
having ordinary skill in the art to make any corner
rounded for the sake of safety to prevent the formation
of any harmful shape corner. [Final Rejection at page
2]
We do not agree with the examiner that Howlett shows
substantially rounded edges. In our view, the edges of Howlett
are angular. Further, there is no disclosure, teaching or
suggestion of a second rounded edge having an enhanced curvature
which is defined in the specification at page 6 as having more
pronounced curvature than the first rounded edge.
Appeal No. 97-1883
Application 08/254,973
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In addition, we do not agree with the examiner that the
requirement of a second rounded edge having an enhanced curvature
of claim 1 would have been an obvious design choice. In
specifically disclosing that the second rounded edge has a more
pronounced curvature, the appellant also makes clear that this
pronounced curvature has been chosen to facilitate pouring from
the container. Far from being a matter of obvious design choice,
this is a matter which is at the very heart of appellant's
disclosed and claimed invention. The examiner can not simply
brush this feature aside.
Finally, we find no factual basis for concluding that a
person of ordinary skill in the art would have been motivated to
make any corner rounded for the sake of safety to prevent the
formation of any harmful shaped corner.
Appeal No. 97-1883
Application 08/254,973
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The decision of the examiner is reversed.
REVERSED
IAN A. CALVERT )
Administrative Patent Judge )
)
)
)
HARRISON E. McCANDLISH, Senior) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
MURRIEL E. CRAWFORD )
Administrative Patent Judge )
MEC/gjh
Appeal No. 97-1883
Application 08/254,973
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