Ex Parte Macler

Patent Trial and Appeal Board

Apr 28, 2017

12755251 (P.T.A.B. Apr. 28, 2017)

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.
12/755,251 04/06/2010 Jeffrey E. Macler 119/1758US 8256
22822 7590 05/02/2017
LEWIS RICE LLC
ATTN: BOX IP DEPT.
600 Washington Ave.
Suite 2500
ST LOUIS, MO 63101
EXAMINER
NGO, LIEN M
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
05/02/2017 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):
IPDEPT@LEWISRICE.COM
KDAMMAN@LEWISRICE.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFREY E. MACLER
Appeal 2015-005205
Application 12/755,251
Technology Center 3700
Before LYNNE H. BROWNE, LISA M. GUIJT, and
GORDON D. KINDER, Administrative Patent Judges.
KINDER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134 from a rejection of claims
1, 2, and 5. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 We are informed that the real party in interest is International Packaging
Innovations, LLC. Br. 1.
Appeal 2015-005205
Application 12/755,251
CLAIMED SUBJECT MATTER
The claims are directed to a ribbed water spike. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A spike for use in dispensing a liquid from a bag, the spike
comprising:
a hollow shaft comprising two ends and an elongated body
therebetweeen, [sic] said body including an outer surface and
defining an internal volume;
a cone-shaped tip comprised of a base and a terminating
point, said base of said cone-shaped tip connected at a first of
said two ends, said cone-shaped tip being capable of penetrating
the outer surface of a bag containing fluid;
at least one opening in said cone-shaped tip, said at least
one opening allowing access into the interior volume of said
hollow shaft; and
a plurality of ribs, each of said ribs in said plurality being
independently positioned on an external surface of said body so
as to circumscribe said body at a point between said two ends.
REFERENCES
prior art relied upon by the Examiner in rejecting the claims on
US 4,325,496 Apr. 20, 1982
US 2008/0142543 A1 June 19, 2008
REJECTIONS2
Claims 1, 2, and 5 are rejected under 35 U.S.C. § 102(e) as being
anticipated by Jones.
The
appeal is:
Malpas
Jones
2 Claims 1, 2, and 5 were rejected under 35 U.S.C. § 102(b) as being
anticipated by Malpas. This rejection was withdrawn by the Examiner.
Ans. 3.
2
Appeal 2015-005205
Application 12/755,251
OPINION
The Examiner finds all the limitations of claim 1 are met in Jones.
Final Act. 3. We focus on two limitations: “a cone shaped tip [with] at least
one opening in said cone-shaped tip” and “a plurality of ribs, each of said
ribs in said plurality being independently positioned on an external surface
of said body.” Br. 23 (Claims App.). In a mark-up of Jones’ Figure 1, the
Examiner identifies the structure corresponding to the claimed opening as
the V-shaped slit between the base of the spike 3 and the end of tubular
member 2. Ans. 3. The Examiner identifies the ribs as being item 34 which
appear in Jones’ Figure 10. Final Act. 3.
Appellant argues that the dual flanges 34 in Jones’ Figure 103 must be
like flanges 19 in Jones’ Figure 1. Br. 15—16. We agree. Figure 10 is
described as being “of a tap assembly of the general type under
consideration.” Jones 125. The flanges 19 in Figure 1 are described as
“defining a surrounding groove (20) between them for receiving an edge of
an aperture in the wall of the box (not shown) in which a liquid packaging
bag is . . . stored.” Jones 132. Although the shape of the groove 20 in
Figure 1 is slightly different from the shape of the groove shown in Figure
10, there is no change in function described, and we conclude that the two
flanges 19 as well as the two flanges 34 are spaced to receive a wall of a
box. They are therefore not “independently positioned” as required by claim
1. Rather once one flange is positioned, the thickness of the intended wall
determines the position of the other. Accordingly, the Examiner’s finding
3 Figure 10 shows flanges 34; Figure 11 shows similar flanges 37. Appellant
refers flanges 34 in Figure 11. We take this as a typographical error and
assume Appellant was referring to flanges 34 in Figure 10.
3
Appeal 2015-005205
Application 12/755,251
that the flanges 34 in Jones are “independently positioned arranged on an
external surface of the said body so as to circumscribe said body at a point
between said two ends” (Final Act. 3) is not supported by substantial
evidence.
Claim 1 requires “at least one opening in [the] cone-shaped tip.”
Appeal Br. 23 (claims App.). The Examiner, finds that Jones shows such an
opening by including an end portion of the tubular member 2 of Jones as
part of the cone-shaped tip. Ans. 3. We cannot agree after a careful
examination of Jones. Jones describes a right circular conical spike 3 at the
end of a generally tubular outlet member 2 which is connected by an integral
hinge 4 to the tubular outlet member. Jones 127. Our review of Jones
shows no opening in the cone-shaped member (spike 3), but instead an
opening is formed between the circular bottom of the cone-shaped member
and the end of the tubular member. The Examiner has constructed an
opening in the cone-shaped tip only by arbitrarily including part of the
tubular member as part of the claimed cone-shaped tip. But doing so means
that the “tip” is no longer “cone-shaped” but rather partially cylindrical.
Because claim 1 requires an opening “in” the cone-shaped member, and
because Jones does not show such an opening or describe one, the
Examiner’s findings are not supported by substantial evidence.
In view of the foregoing, we do not sustain the rejection of claim 1.
Claims 2 and 5 depend from claim 1. For the reasons we cannot sustain the
rejection of claim 1 we likewise cannot sustain the rejection of claims 2 and
5.
4
Appeal 2015-005205
Application 12/755,251
DECISION
The Examiner’s rejection of claims 1, 2, and 5 is reversed.
REVERSED
5