Ex Parte Meers et al

Patent Trial and Appeal Board

Jan 17, 2018

14054012 (P.T.A.B. Jan. 17, 2018)

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.
14/054,012 10/15/2013 Ryan C. Meers 12495 PUS; 67080-592
PUS1
9717
26096 7590 01/19/2018
TART SON OASKFY fr OT DS P C
EXAMINER
400 WEST MAPLE ROAD
SUITE 350
CASTRIOTTA, JENNIFER
BIRMINGHAM, MI 48009 ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
01/19/2018 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):
ptodocket @ cgolaw. com
cgolaw@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RYAN C. MEERS, WILLIAM P. APPS,
and MARGARET McCANLESS
Appeal 2017-005392
Application 14/054,012
Technology Center 3700
Before JOSEPH A. FISCHETTI, PHILIP J. HOFFMANN, and
ALYSSA L. FINAMORE, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellants1 appeal from the
Examiner’s decision to reject claims 1, 3-15, and 17-23.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to Appellants, the real party in interest is Rehrig Pacific
Company. Appeal Br. 1.
2 Appellants’ listing of claims erroneously includes claim 16, which
Appellants previously canceled. See Appeal Br., Claims App.; see also
Amendment filed Nov. 27, 2015 (“Amendment”), 4.
Appeal 2017-005392
Application 14/054,012
According to Appellants, the “invention relates to crates for carrying
bottles.” Spec. ^ 3. Claims 1, 6, and 15 are the only independent claims on
appeal. Below, we reproduce claim 1 as illustrative of the appealed claims.
1. A crate comprising:
a base;
an end wall extending upward from the base;
a side wall extending upward from the base, the side wall
and the end wall including an upper band connected to the base
by a plurality of columns, the upper band including at least one
upper window formed therethrough, the upper window
including a lower wall angled downward into the crate, the
lower wall extending from an outermost wall of the crate to an
interior wall partially defining an interior of the crate.
REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
I. claims 1, 3-5, 7, 14, and 23 under 35 U.S.C. § 103(a) as
unpatentable over Koefelda (US 8,056,753 B2, iss. Nov. 15,
2011) and Andochick (US 2010/0147642 Al, pub. June 17,
2010);
II. claims 8-13 under 35 U.S.C. § 103(a) as unpatentable over
Koefelda, Andochick, and Hammett (US 7,036,666 B2, iss.
May 2, 2006) (“Hammett ’666”)3;
3 Inasmuch as each of claims 8-13 ultimately depends from independent
claim 1, which is rejected based on a combination of Koefelda and
Andochick, notwithstanding that the Examiner does not state that claims 8-
13 are rejected based on Andochick (see, e.g., Answer 2), we understand that
these claims are rejected based on a combination of Koefelda, Andochick,
and Hammett.
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Application 14/054,012
III. claims 15 and 17-20 under 35 U.S.C. § 103(a) as unpatentable
over Koefelda and Hammett ’666;
IV. claims 6 and 21 under 35 U.S.C. § 103(a) as unpatentable over
Hammett ’666; and
V. claim 22 under 35 U.S.C. § 103(a) as unpatentable over
Hammett ’666 and Hammett (US 5,785,170, iss. July 28, 1998)
(“Hammett ’170”).
ANALYSIS
Rejection I
As set forth above, independent claim 1 recites, among other
recitations,
a side wall extending upward from the base, the side wall and
the end wall including an upper band connected to the base by a
plurality of columns, the upper band including at least one
upper window formed therethrough, the upper window
including a lower wall angled downward into the crate, the
lower wall extending from an outermost wall of the crate to an
interior wall partially defining an interior of the crate.
Appeal Br., Claims App. (emphasis added). The Examiner determines the
following with respect to the claim:
Koefelda teaches a stacking crate with a lower wall extending
from an outermost wall of the crate to an interior wall partly
defining the interior of the crate [which] appears to be flat.
[Andochick] teaches stackable containers having
complementary surfaces where the lower container has an
interface which is angled from the outside of the container
towards the interior of the container. The lower wall of
Koefelda was modified with the teachings of [Andochick] in
order to increase the stacking stability of the crates
([Andochick]: Paragraph [0031]). It is well known that[,] . . .
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Application 14/054,012
when stacking, having a lower wall with an inwardly angled
surface will better resist horizontal movement than a flat
surface.
Answer 3 (emphases added). In response, Appellants essentially argue that
the Examiner’s reason for combining Andochick with Koefelda is
insufficient. See Appeal Br. 5-6; see also Reply Br. 1-2. Based on our
review of the record, the Examiner does not provide an adequate reason with
the required rational underpinning to modify Koefelda based on Andochick.
See KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“[Rejections
on obviousness cannot be sustained by mere conclusory statements; instead,
there must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.”).
Koefelda is directed to bottle crates that nest with one another when
the crates are empty. Koefelda, Abstract. As explained by Appellants, “the
crates in Koefelda nest significantly” within one another. Reply Br. 1.
Conversely, Andochick is directed to towable luggage that is stacked on top
of each other. Andochick, Title. The Examiner relies on an embodiment
shown in Andochick’s Figure 4 (Final Office Action mailed Feb. 1, 2016
(“Final Action”), 4), which discloses “stacking features between the base
container (100) and the upper container (122) [as] an angled interface (302
and 304)” {id.). Because of the numerous differences between Koefelda’s
bottle crates and Andochick’s stackable luggage, we are not convinced that
modifying Koefelda’s “crate with a lower wall. . . that appears to be flat”
(Answer 3) so that the lower wall is inwardly angled, based on Andochick’s
teaching, would increase the stability of the stacked crates, or that there is
any other reason to modify Koefelda’s lower wall to be inwardly angled,
absent impermissible hindsight.
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Application 14/054,012
Thus, based on the foregoing, we do not sustain the obviousness
rejection of claim 1. Therefore, we also do not sustain the obviousness
rejection of claims 3-5, 7, 14, and 23 that depend on claim 1 and which the
Examiner rejects based on the same references as claim 1.
Rejection II
Each of claims 8-13 depends from independent claim 1, whose
obviousness rejection we do not sustain. Inasmuch as the Examiner does not
demonstrate that Hammett ’666 remedies the above-discussed deficiency in
claim l’s rejection, we also do not sustain the obviousness rejection of
claims 8-13.
Rejection III
Independent claim 15 recites the following:
15. A crate comprising:
a base;
an end wall extending upward from the base;
a side wall extending upward from the base, wherein the
side wall includes an upper edge having a curved center peak,
troughs on either side of the center peak and end peaks
proximate either end wall, wherein the side wall includes a side
band connected to the base by columns, the side band including
the upper edge, wherein a lower edge of the side band is
complementary to the upper edge.
Amendment 4 (underlining removed).4 With respect to the rejection of
claim 15, Appellants argue that the rejection is in error as follows:
The Examiner admits that Koefelda does not disclose the upper
band includes an upper edge having a curved center peak,
4 Claim 15, as set forth in the Appeal Briefs Claims Appendix, includes
typographical errors. Thus, we cite to the previously-filed Amendment
dated November 27, 2015.
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Application 14/054,012
troughs on either side of the center peak and end peaks at either
end of the side wall but argues this would be obvious in light of
Hammett. Koefelda could not be modified to include the
shaped sidewalls of Hammett. The side walls of Hammett are
completely different from the side walls in [Koefelda]. In
Hammett, the peaks in the side walls are received inside the
walls of the tray stacked thereon. However, in Koefelda, the
upper handle portion of the end wall and the side wall band
members are not received inside the hollow walls of the tray
stacked thereon. Therefore, the proposed modification would
require a drastic (nonobvious) change in operation in the way
[Koefelda] works.
Appeal Br. 7 (emphasis added). This argument is not persuasive, however,
because, in the rejection,
only the shape of the upper band of Koefelda was modified
with the teachings of Hammett [’]666, the entire structure of the
side[ ]wall was not directly replaced. The shape of the upper
band of Koefelda was modified with the teachings of
Hammett [’]666 in order to allow the user to be able to better
see the label of bottles in the tray (Hammett [’]666[] [c]ol. 7,
[11.] 41—44).
Answer 4 (emphasis added). Thus, inasmuch as Appellants’ argument is
directed to why it would not have been obvious to replace Koefelda’s side
wall, Appellants do not persuade us that the Examiner errs in modifying the
shape of a portion of the Koefelda’s side wall based on Hammett ’666. For
these reasons, we sustain the rejection of independent claim 15, as well as
the rejection of its dependent claims 17-20 that Appellants do not argue
separately.
Rejection IV
With respect to the rejection of independent claim 6 and its dependent
claim 21, Appellants point out the Examiner’s basis for the rejection—“that
‘rearranging parts involves only routine skill in the art’”—but do not explain
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Application 14/054,012
why, in this case, rearrangement of parts from Hammett ’666 would not be
obvious or would not result in the claimed invention. Appeal Br. 7 (citation
omitted). Appellants further argue that “Hammett is for holding ‘six-pack
cartons[]’ (col. 1, lines 23-26), which would prevent a barcode on a bottle
from being read through the window, as required by the claims.” Id. But,
“[t]he Examiner . . . note[s] that ‘six-pack cartons’ are listed as a potential
use for the tray. However, the Examiner . . . point[s] out that Hammett
[’]666 teaches the tray may also be used for bottles ([c]ol. 7, [11.] 41^14).”
Answer 4-5. Thus, these arguments are not persuasive of Examiner error,
and, therefore, we sustain the obviousness rejection of claims 6 and 21.
Rejection V
Appellants argue that the rejection of claim 22 is in error because
“Hammett [’6667] discloses a tray for holding ‘six-pack cartons[]’ (col. 1,
[11.] 23-26). Hammett [’6667] could not have dividers defining bottle
receiving pockets because [then] it would not be able to hold cartons (col. 1,
[11.] 23-26).” Appeal Br. 8. As discussed above, the Examiner points out
that Hammett ’666 teaches the trays may be used for bottles. Also, the
Examiner relies on Hammett ’170 to teach dividers. Final Action 14. Thus,
this argument is not persuasive of Examiner error, and, therefore, we sustain
the obviousness rejection of claim 22.
DECISION
We REVERSE the rejection of claims 1, 3-5, 7-14, and 23.
We AFFIRM the rejection of claims 6, 15, and 17-22.
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Application 14/054,012
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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