Ex Parte MILLER

Patent Trial and Appeal Board

Jul 30, 2018

13868855 (P.T.A.B. Jul. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/868,855 04/23/2013
22252 7590 08/01/2018
Plager Schack LLP
Mark H. Plager
16152 BEACH BLVD.
SUITE 207
HUNTINGTON BEACH, CA 92647
FIRST NAMED INVENTOR
DERRICK T. MILLER JR.
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
MILLER.DERRICK-LZ.002NP 5254
EXAMINER
CHEUNG, CHUN HO!
ART UNIT PAPER NUMBER
3728
NOTIFICATION DATE DELIVERY MODE
08/01/2018 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):
lzpatents@plagerschack.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DERRICK T. MILLER, JR. 1
Appeal2017-009613
Application 13/868,855
Technology Center 3700
Before CHARLES N. GREENHUT, JAMES P. CALVE, and
GEORGE R. HOSKINS, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Non-Final
Office Action rejecting claims 1-30. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM-IN-PART.
1 Appellant is identified as the real party in interest. Br. 3.
Appeal2017-009613
Application 13/868,855
CLAIMED SUBJECT MATTER
Claims 1, 17, 25, and 29 are independent. Claim 1 is reproduced
below.
1. An improved drinking can enables a user to
efficiency stack several improved drinking cans, the improved
drinking can comprises,
a can body comprising a can side wall terminating in a
contoured bottom edge wherein the contoured bottom edge
further comprises a central flat section immediately adjacent to
a bottom recess inclined at a bottom recess angle; wherein a
cavity exists between the can side wall and the bottom recess
around the contoured bottom edge that is configured to store a
liquid; the bottom recess is shaped to enable a first improved
drinking can to sit upon a second improved drinking can
wherein the bottom recess covers a second can top; wherein the
bottom recess angle is parallel to and adjacent to an upper
portion of the second can body; this protects a drinking area
from becoming contaminated during shipment, storage, and
display.
Br. 10 (Claims App'x).
REJECTIONS
Claims 2, 18, 21, 22, and 24 are rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite.
Claim 17 is rejected under 35 U.S.C. § I02(b) as anticipated by
Gardiner (US 6,425,493 Bl, iss. July 30, 2002).
Claims 1 and 3 are rejected under 35 U.S.C. § I03(a) as unpatentable
over Chiang (US 6,202,881 B 1, iss. Mar. 20, 2001 ).
Claims 4, 5, 9--11, and 15 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Chiang and Simmons (US 5,788,076, iss. Aug. 4, 1998).
2
Appeal2017-009613
Application 13/868,855
Claims 1-3, 6, 18, and 25 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Gardiner and Chiang.
Claims 4, 5, 7-16, 21, 22, 24, and 26-28 are rejected under 35 U.S.C.
§ I03(a) as unpatentable over Gardiner, Chiang, and Simmons.
Claims 19, 20, and 23 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Gardiner and Simmons.
Claims 29 and 30 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Simmons and Grosskopf (US 6,349,974 Bl, iss. Feb. 26,
2002).
ANALYSIS
Claims 2, 18, 21, 22, and 24
Rejected As Being Indefinite
The Examiner finds that the limitation "the can opening" in claim 2
lacks a proper antecedent basis in claim 1 from which it depends. Non-Final
Act. 3. The Examiner finds that the limitation "a can top" in claims 18, 21,
22, and 24 lacks a proper antecedent basis, and it is unclear whether this
limitation is the same structure as "a can top" in claim 1 7, from which these
claims depend, or a different structure. Id. Appellant does not present any
arguments for this rejection. Thus, we summarily sustain this rejection.
Claim 17
Rejected As Anticipated By Gardiner
The Examiner finds that Gardiner discloses a drinking can with a fluid
return comprising ramp lip (portion 30) arranged on the can top and around
the spout and extending from rim 18 at the top edge of the can body opening
inward toward the spout to provide a funnel that directs fluid from the front
and sides of an open area into the can body. Non-Final Act. 3--4.
3
Appeal2017-009613
Application 13/868,855
Appellant argues that Gardiner does not teach "the spout is recessed
from the ramped lip to the can opening" as claimed because portion 30 of
Gardiner slopes downwardly from near rim 18 to score line 22 and does not
slope any further unlike the claimed invention. Br. 7-8. Appellant argues
that even though Gardiner's can top 16 includes ramped lip (portions 30, 52
in Figures 1 and 4) that is configured to direct fluid back into the can body,
Gardiner includes other structural elements that contribute to the effect of
the ramped lip. Id. at 8. Appellant further argues that the ramped lip in
Gardiner does not completely surround the spout. Id.
Claim 17 recites "a ramped lip, arranged on the can top, around the
spout, extending outward from the can opening and then inward toward the
spout." Br. 15 (Claims App'x). Claim 17 does not require the ramped lip to
be completely around the spout, as Appellant argues. Appellant's drawings
in Figures 1 and 5 illustrates ramped lip 16 arranged around only a portion
of spout 26 with pull tab 34 arranged around another portion of spout 26.
The Specification discloses "[ c Jan top 24 comprises can spout 26 which is
proximate ramped lip 16." Spec. ,r 21; see also id. ,r 23 ("can top 24 which
further comprises can spout 26 and ramped lip 16 as shown in Fig. 1 ").
Thus, the plain language of claim 17 interpreted in light of the Specification
only requires a ramped lip around a portion of the spout. Gardiner discloses
this feature as portion 30 in Figure 1 and portion 52 in Figure 4.
Gardiner's portions 30, 52 extend outward from the can opening (at
rim 18) and inward toward spout 20, which is recessed from portions 30, 52
to the can opening in Figures 1-5. Portions 30, 52 also slope downwardly
from the front and sides of the can opening to direct fluid back into the can
body as claimed and as Appellant acknowledges. Br. 8. Gardiner, 4:46-49.
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Appeal2017-009613
Application 13/868,855
Gardiner does not attribute the fluid direction attributes of portions 30,
52 to any other feature, contrary to Appellant's argument. Br. 8. Moreover,
even if other features cooperate with portions 30, 52 in this regard, claim 17
does not preclude such features. Claim 17 recites "the improved drinking
can comprises." This open-ended transition permits other elements besides
the ramped lip and spout as long as Gardner's ramped lip and spout provide
the functions and structure recited in claim 17. They do as discussed above.
That Gardiner's ramp portion 30 ends at score line 22 of spout 20 lets
it direct fluid into the can body as claimed. Appellant's Figures 1, 2, 5, and
7 illustrate a similar arrangement in which ramped lip 16 extends from an
edge of a can top to an edge or score line of spout 26 to direct fluid into the
can body as claimed in the same manner as Gardiner's ramp portions 30, 52.
Thus, we sustain the rejection of claim 17.
Claims 1 and 3
Rejected As Unpatentable Over Chiang
The Examiner finds that Chiang discloses a drinking can as recited in
claim 1 with a contoured bottom edge adjacent to a bottom recess as shown
in Figure 5 and a cavity formed between the can side wall and bottom recess
to store liquid. Non-Final Act. 5. The Examiner finds that Chiang does not
disclose a central flat section or "a bottom recess inclined at a bottom recess
angle" "wherein the bottom recess angle is parallel to and adjacent to an
upper portion of the second can body" on which the first can is stacked. Id.
The Examiner reasons it would have been an obvious design choice to form
Chiang's curved bottom as a flat section with a bottom recess angle because
both structures would work equally well and the claimed design does not
solve a particular problem or yield unexpected results. Id. at 5---6.
5
Appeal2017-009613
Application 13/868,855
Appellant argues that the proposed "change in shape and size result in
a change in function [so] the modification is more than an obvious design
choice." Br. 5. Appellant also argues that even through Chiang's cans are
stackable, it is not obvious to modify the stackable cans "such that a bottom
recess angle is parallel to and adjacent to a can top of a second can body."
Id. at 6. Appellant further argues that "the present invention describes the
bottom that precisely complements the can top, without leaving a spaces
therebetween when the cans are stacked." Id. Appellant illustrates this
claimed configuration in a revised Figure 3, which is reproduced below.
Figure 3, reproduced above, illustrates flat bottom recess 18B ( dashed
lines) of upper can lOB adjacent a top of lower can lOA. Bottom recess 18B
of upper can lOB forms a cavity with can wall 36 and is angled parallel and
adjacent to a top of bottom can lOA. Spec. ,r 23 (amended July 12, 2013).
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Appeal2017-009613
Application 13/868,855
Even if Chiang's curved bottom 22A was flattened as a design choice,
the Examiner has not explained how that modification also forms a bottom
recess inclined at an angle that is parallel to and adjacent to an upper portion
of the second can body, as claimed. Final Act. 5---6; Ans. 2-3. Figures 3 and
5 of Chiang are reproduced below to illustrate Chiang's curved bottom 22.
26
20
22-1
4C!
25----- ... "' ..
23
34
I
?ff~~:
:I 2-3H 232
~
FIG.3
30 '23A
24
212
2iA
------. 22A
Figure 3, reproduced above, shows can 20 with curved bottom 22
stacked atop another can with a flat top. Figure 5, reproduced above, shows
another embodiment with a curved bottom 22A and flat upper panel 23A.
We agree with the Examiner that flattening curved bottom 22, 22A
produces a flat section that is parallel to and adjacent to a flat upper panel
23, 23A of a bottom can. However, claim 1 also requires a bottom recess
that forms a cavity and "the bottom recess angle is parallel to and adjacent to
an upper portion of the second [bottom] can body."
7
Appeal2017-009613
Application 13/868,855
Figures 3 and 5 of Chiang illustrate bottom recess 22, 22A adjacent to
vertical side walls. However, bottom recess 22, 22A and vertical lower wall
are not parallel or adjacent to upper portions 212, 212A of a lower can's top.
It is unclear how flattening curved bottom 22, 22A would produce a bottom
recess angle that is parallel and adjacent to an upper portion of a second can
on which the first can is stacked. A space would exist between a bottom of
an upper can and an upper portion of a lower can when the cans are stacked
even if bottom section 22, 22A is flattened. Br. 6. Nor is it clear how a flat
bottom section 22, 22A forms a cavity with a vertical side wall of a can as
claimed. Thus, we do not sustain the rejection of claims 1 and 3.
Claims 4, 5, 9--11, and 15
Rejected Over Chiang and Simmons
The Examiner's reliance on Simmons to teach a mural covering a can
body with a message, as recited in claims 4, 5, and 11, and Chiang to teach a
half loop coupling, as recited in claims 9, 10, and 15 (Non-Final Act. 6-10),
does not remedy the deficiencies of Chiang discussed above as to claim 1,
from which claims 4, 5, 9--11, and 15 depend. Thus, we do not sustain the
rejection of claims 4, 5, 9--11, and 15.
Claims 1-3, 6, 18, and 25
Rejected As Unpatentable over Gardiner and Chiang
Claims 1-3 and 6
The Examiner finds that Gardiner teaches a stackable drinking can 12
as recited in claim 1, except for a contoured bottom edge with a cavity and a
bottom recess inclined at a bottom recess angle parallel to and adjacent to an
upper portion of a second can to cover the can top of the second drinking can
stacked below the first can. Non-Final Act. 10.
8
Appeal2017-009613
Application 13/868,855
The Examiner finds that Chiang teaches a drinking can in Figure 3
with recessed bottom panel 22 that covers the top of a can stacked beneath it
to protect the drinking area of the bottom can from contamination. Id. at 10-
11. The Examiner reasons that it would have been obvious to include this
feature on Gardiner to improve its stacking feature. Id. at 11. The Examiner
also determines that it would have been an obvious design choice to replace
Chiang's bottom curved portion 22 with a flat central bottom section that is
recessed at an angle parallel to and adjacent to an upper portion of a second
can top as claimed because both structures would work equally well with
either design, and the Specification does not disclose that the claimed design
solves any particular problem or yields any unexpected results. Id. at 11-12.
Appellant argues that a change in shape and size results in a change in
function so the modification is more than a design choice. Br. 5. Appellant
also argues that Chiang's concave bottom panel 22 at bottom end 211 is
reinforced with peripheral edges 221 on sides that cover the top of a second
can while leaving a cavity between and around the stacked cans, whereas the
claimed bottom recess angle precisely complements the can top without
leaving spaces between the stacked cans. Id. at 6. We agree for the reasons
discussed for the rejection of claim 1 as unpatentable over Chiang. Thus, we
do not sustain the rejection of claim 1 or its dependent claims 2, 3, and 6.
Claim 18
We sustain the rejection of claim 18, which depends from claim 17,
because Gardiner anticipates claim 17, as discussed above, and Appellant
does not argue the rejection of claim 18. Non-Final Act. 14; see Br. 4---6; 37
C.F.R. § 4I.37(c)(l)(iv). Moreover, Chiang discloses an "inverted seal" as
recited in claims 18 and 25 for the reasons discussed below for claim 25.
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Application 13/868,855
Claim 25
The Examiner finds that Chiang teaches a can top 23 A mechanically
coupled to a can body by an inverted seal that includes the can body directly
truncating to the can top and wrapped into a half loop with the can top
wrapped over the can body as recited in independent claim 25. Non-Final
Act. 14 (rejecting claims 18 and 25 based on these same findings).
Appellant argues that claim 25 requires that "the can body directly
truncating to the can top directly wrapping into a half loop and the can top
wrapped over the can body," whereas Chiang teaches wrapping in afull loop
instead of the claimed half loop arrangement. Br. 8. This argument is not
persuasive for the following reasons.
Claim 25 recites "wherein the inverted seal comprises the can body
directly truncating to the can top the directly wrapping into a half loop and
the can top wrapped over the can body." Claim 25 does not recite which
element is "directly wrapping into a half loop." Appellant illustrates a can
top 24 that wraps over a can body in Figure 6 with a curved inverted seal 22.
Spec. ,r 27. The Specification describes this arrangement as "[ c Jan top 24 is
encircled by inverted seal 22." Id. ,r,r 21, 28. The Examiner reasonably
interprets these limitations to correspond to Chiang's inverted seal, which
includes upper panel 23A that wraps over can body 21 A, and surrounds rim
27 A, which has a U-shape half loop that interlocks with a similar half loop
of can body 2 lA. See Non-Final Act. 14; Ans. 7-8. Appellant's argument
that Chiang teaches a full loop instead of a half loop arrangement does not
apprise us of error in the Examiner's finding that Chiang discloses a half
loop inverted seal as claimed as a generally U-shaped inverted seal.
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Appeal2017-009613
Application 13/868,855
As discussed above, Appellant's argument is not commensurate with
the scope of claim 25. In addition, Chiang's upper panel 23A wraps over a
can body, as claimed, via surrounding rim 27 A, and surrounding rim 27 A
further includes a half loop portion that directly wraps into a similar half
loop portion of the can top as claimed. See Chiang, 5:43-51, Fig. 5.
Thus, we sustain the rejection of claim 25.
Claims 4, 5, 7-16, 21, 22, 24, and 26-28
Rejected Over Gardiner, Chiang, and Simmons
The Examiner's reliance on Simmons to teach the features recited in
claims 4, 5, 7, 8, and 11-14, and 16, and Chiang to teach an inverted seal as
recited in claims 9, 10, and 15 does not remedy the deficiencies of Chiang as
to claim 1 's requirement for a bottom recess angle as discussed above. Non-
Final Act. 14--21. Thus, we do not sustain the rejection of these claims.
Appellant does not argue the rejection of claims 21, 22, and 24, which
depend from independent claim 17. See Br. 3-9. Because we sustain the
rejection of claim 17 as anticipated by Gardiner, we summarily sustain the
rejection of claims 21, 22, and 24.
Appellant does not argue the rejection of claims 26-28, which depend
from independent claim 25. See id. Because we sustain the rejection of
claim 25 as unpatentable over Gardiner and Chiang, we summarily sustain
the rejection of claims 26-28.
Claims 19, 2 0, and 2 3
Rejected Over Gardiner and Simmons
Appellant does not argue the rejection of claims 19, 20, and 23, which
depend from claim 17, the rejection of which we affirmed as anticipated by
Chiang. See id. Thus, we summarily sustain the rejection of claims 19, 20,
and 23.
11
Appeal2017-009613
Application 13/868,855
Claims 2 9 and 3 0
Rejected Over Simmons and Grosskopf
Independent claim 29 recites a drinking can with a mural cover that
displays non-identical information on an outside mural and an inside mural
of the mural cover wherein the mural cover can be removed by applying a
force to a tab and the outside mural holds traditional can design information
such as a logo, nutritional information, a Quick Response code, a bar code,
and a serial number. Br. 18 (Claims App'x). Appellant argues that claim 29
requires three discrete messaging mediums on a can. Br. 9. In particular,
Appellant argues that the messaging mediums are printed on the can itself as
a cover mural, they are printed on the outer mural, and they are printed on
the inner mural. Id.
We agree with the Examiner that Simmons teaches the claimed mural
features. In particular, Simmons discloses a can with an outer cylindrical
surface 4 that includes printed matter information relating to the contents of
the can. Non-Final Act. 26; Ans. 8. Simmons refers to this information on
the can itself as the standard "get-up" of the package. Simmons, 3:36-44,
Fig. 1; Non-Final Act. 26 (citing id.); Ans. 8 (same).
Simmons discloses a mural cover (wrapper 3) that can be removed by
pulling a tab ( extension 8). Wrapper 3 includes outer surface 5 on which is
printed information substantially similar to the information on the can itself
to include a bar code 70', trademark, and logo, and also including the word
"PROMOTION," which is not printed on can 4. Simmons, 3:54---65, Fig. 1;
Non-Final Act. 25; Ans. 8. Wrapper 3 also includes an inner surface with
different printed information for a short term promotion of the product and
that also is different from the can's standard "get-up." Simmons, 4: 10-16.
12
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Application 13/868,855
Appellant's arguments do not apprise us of error in the Examiner's
findings that Simmons discloses the claimed mural cover with outside and
inside murals having non-identical information and the outside mural holds
traditional can design information as claimed. Thus, we sustain the rejection
of claim 29 and also claim 30, which depends therefrom, and for which
Appellant does not present any separate arguments for patentability. Br. 9;
see 37 C.F.R. § 4I.37(c)(l)(iv).
DECISION
We affirm the rejection of claims 2, 18, 21, 22, and 24 as being
indefinite.
We reverse the prior art rejections of claims 1-16, and we affirm the
prior art rejections of claims 17-30.
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
13