Ex Parte NEUFELD et al

Patent Trial and Appeal Board

Mar 29, 2016

12684670 (P.T.A.B. Mar. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/684,670 01/08/2010
22885 7590 03/31/2016
MCKEE, VOORHEES & SEASE, PLC
801 GRAND A VENUE
SUITE 3200
DES MOINES, IA 50309-2721
FIRST NAMED INVENTOR
JUAN NEUFELD
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.
P09509USOO 5737
EXAMINER
ELOSHWAY, NIKI MARINA
ART UNIT PAPER NUMBER
3728
NOTIFICATION DATE DELIVERY MODE
03/31/2016 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):
patatty@ipmvs.com
michelle. woods@ipmvs.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JUAN NEUFELD and BERNIE THIESSEN
Appeal2014-001171
Application 12/684,670
Technology Center 3700
Before MICHAEL L. HOELTER, ERIC C. JESCHKE, and PAUL J.
KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
10. App. Br. 3. Claims 11-20 are cancelled. App. Br. 3. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal2014-001171
Application 12/684,670
THE CLAIMED SUBJECT MATTER
The claims are directed to a collapsible container. Claim 1,
reproduced below, is the only independent claim and illustrative of the
claimed subject matter:
1. A collapsible bulk container for dry, flowable particulate
material, comprising:
a lower frame;
a bottom wall within the frame and having a discharge
openmg;
a first side wall pivotally connected to the frame for
movement between an upright use position and a substantially
horizontal storage position;
a second side wall pivotally connected to the frame for
movement between an upright use position and a substantially
horizontal storage position;
a third side wall pivotally connected to the frame for
movement between an upright use position and a substantially
horizontal storage position;
a fourth side wall pivotally connected to the frame for
movement between an upright use position and a substantially
horizontal storage position;
each side wall pivoting at a different elevation such that
the side walls fold down substantially flat, one upon another in
the storage position;
a first lid panel pivotally connected to the third side wall
for movement between an open position adjacent the third side
wall and a closed position over the bottom wall;
a second lid panel pivotally connected to the fourth side
wall for pivotal movement between an open position adjacent
the fourth side wall and a closed position over the bottom wall;
and
the first and second lid panels overlying the third and
fourth side walls, respectively, when the third and fourth side
walls are folded down.
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Appeal2014-001171
Application 12/684,670
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Kubach
Deaton
Plunkett
us 2,486,532
us 5,845, 799
US 6,533,122 Bl
REJECTIONS
The Examiner made the following rejections:
Nov. 1, 1949
Dec. 8, 1998
Mar. 18, 2003
1. Claims 1---6 and 9 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Kubach and Plunkett.
2. Claims 7, 8 and 10 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Kubach, Plunkett, and Deaton.
3. Claims 1---6 and 9 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Plunkett and Kubach.
4. Claims 7, 8 and 10 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Plunkett, Kubach, and Deaton.
Appellants seek our review of the four rejections.
OPINION
Rejection 1: Claims 1---6 and 9
Appellants argue claims 1--4 and 6 as a group. App. Br. 21-23. We
select claim 1 as the representative claim of this group with claims 2--4 and 6
standing or falling with claim 1. 37 C.F.R. § 41.37(c)(l)(iv) (2012).
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Appeal2014-001171
Application 12/684,670
Appellants argue claim 5 separately (App. Br. 23) and also claim 9
separately (App. Br. 24--25). Claims 1, 5, and 9 are addressed below.
Claim 1
The Examiner finds that Kubach discloses all of the limitations of
claim 1 except for the discharge opening, and that Plunkett discloses a
discharge opening 23 in the bottom wall. Non-Final Act. 5 (dated Mar. 19,
2013). The Examiner also states that it would have been obvious to provide
"the container of Kubach with a discharge opening, as taught by Plunkett, in
order to give the user the option of transporting and dispensing [ flowable]
material." Id.
Appellants argue, in part, that the Examiner's "mere conclusory
statements" fail to provide "a citation providing a motivation for combining
the references." App. Br. 22. We are instructed that although the "teaching,
suggestion, motivation" test may be a "helpful insight," it cannot be used as
a rigid and mandatory formula. See KSR Int'! Co. v. Teleflex, Inc., 550 U.S.
398, 418-19 (2007). As the Examiner noted (Ans. 8), the key to supporting
any rejection under 35 U.S.C. § 103 is a clear "articulated reasoning with
some rational underpinning to support the legal conclusion of obviousness."'
KSR, 550 U.S. at 418.
The Examiner, in response, further explains that motivation for
combining the references may be found in
Plunkett which teaches a discharge opening for completely
emptying the cavity (col. 7 lines 9-22). This motivation is also
in the knowledge generally available to one of ordinary skill in
the art. Transport containers can be used for a variety of items.
Providing a discharge opening on the container allows the
container to be used for transporting solid items and flowable
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Appeal2014-001171
Application 12/684,670
material. The discharge opening is used in the art to quickly and
efficiently discharge flowable material from a container.
Ans. 12; see also Non-Final Act. 5.
Appellants reply that the Plunkett drainage opening (i.e., drain cutout
23) is used for an "inner liner 60, and not the container 10." Reply Br. 7.
Appellants' argument is not responsive to the rejection as articulated by the
Examiner. In other words, Appellants do not explain how one skilled in the
art would not be motivated to employ a discharge opening as taught by
Plunkett in the device of Kubach for the reasons stated. Furthermore,
Plunkett's drain cutout 23 and drain box 24 may be used with or without the
liner. See, e.g., Plunkett 4:4---6, 7:10-23.
Appellants also argue that recess 24 in Plunkett's flat floor "would not
be efficient or effective in discharging particulate, flowable material."
Reply Br. 7. However, Plunkett, which is "suitable for the transport, storage
and handling of liquid materials and of free-flowing powder materials,"
discloses no difficulty discharging materials through its drain cutout 23.
Plunkett 1:6-10.
Finally, Appellants argue that since it was not obvious for the
Examiner to modify Kubach in view of Plunkett in the Final Action, dated
May 10, 2012, it was not obvious to change the order of the two references
in the Non-Final Action, dated March 19, 2013. Reply Br. 6. We do not
consider the order in which prior art is applied in a rejection to be
significant. See, e.g., In re Bush, 296 F.2d 491, 496 (CCPA 1961) (When a
rejection is based on a combination of references, the order in which prior
art references are cited to the Applicant is of no significance, but merely a
matter of exposition).
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Application 12/684,670
Appellants' arguments are not persuasive because they fail to apprise
us of error in the Examiner's findings regarding the teachings of either
Kubach or Plunkett, or their combination. For the reasons set forth above,
we sustain the Examiner's rejection of claim 1under35 U.S.C. § 103(a) in
view of Kubach and Plunkett. Because Appellants do not separately argue
the patentability of claims 2--4 and 6, we likewise sustain the Examiner's
rejections of these claims under 35 U.S.C. § 103(a).
Claim 5
For claim 5, the Examiner finds that Kubach discloses "pins 14
removabl[y] extending through adjacent edges of the side walls at each
comer to lock the side walls in the use position (figure 4)." Non-Final Act.
5, Ans. 12-13. We agree with Appellants that the pins 14 in Kubach are
used to secure packing material and the like, and are not used to secure the
adjacent side walls as recited in claim 5. 1 Kubach 2:35--46. Kubach
discloses the side walls are secured using a tongue and groove interlocking
configuration. Kubach 2:52-3:24. Thus, we reverse the Examiner's
rejection of claim 5.
Claim 9
For claim 9, the Examiner finds that Plunkett discloses a gate (i.e.,
door 70) in the bottom wall that is moveable between open and closed
We note that Plunkett discloses pins that attach adjacent side walls
together. Referring to Figure 3, for example, the "sliding bolts 50a are
attached to the front wall 32, back wall 26, and third lid 40 lid panels and
can be slid into corresponding holes in the left wall 28, right wall 30, and
third lid 40 panels." See, e.g., Plunkett 4:35--47, Fig. 3.
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Application 12/684,670
positions. Non-Final Act. 5; see also Ans. 12. We agree with Appellants
that Plunkett's gate 70 is located in the side wall, not the bottom wall. App.
Br. 24. The Examiner does not address the relocation of Plunkett's gate
when modifying Kubach, but instead simply indicates that it is known to
provide "a discharge opening on the container." Ans. 12. Lacking any
articulated reasoning for the relocation of Plunkett's gate, we reverse the
Examiner's rejection of claim 9 as unpatentable over Kubach and Plunkett.2
Rejection 2: Claims 7, 8, and 10
Claims 7, 8, and 10, each of which separately depend directly from
claim 1, stand rejected under 35 U.S.C. § 103(a) as being unpatentable over
Kubach, Plunkett, and Deaton. Non-Final Act. 13. Because Appellants do
not allege any patentable distinctions for claim 7 (App. Br. 25-26), we
sustain the Examiner's rejection of this claim under 35 U.S.C. § 103(a).
Claims 8 and 10 are addressed below.
Claim 8
For claim 8, Appellants argue that Deaton does not disclose a bottom
wall that is "funnel-shaped." App. Br. 28. The Examiner correctly finds
that the bottom wall disclosed in Deaton is funnel-shaped. Non-Final Act. 6,
Ans. 13. Figures 3 and 4A--4B of Deaton, for example, show that the
bottom wall has a funnel shape formed by sloped walls 81, 83, and 84, and
the sloped wall to the left of reference 89 (shown in Figure 3). See, e.g.,
2 We note that Deaton discloses a cut off gate or flow control valve 89
in Figures 11-13. See, e.g., Deaton 4:55-5:44. Referring to Figure 3, for
example, the gate 89 is located in the bottom wall 81, and is moveable
between open and closed positions. Deaton 4:55---67.
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Application 12/684,670
Deaton 4:42--46 ("The sloping floor portions 81, 83 and 84 work together to
promote the flowability of the material contained within the container so that
the product is emptied from the container by the natural flow of the product
due to gravity."); compare Spec. 3, 11. 22-24, with Spec. Figs. 8-10
(showing four sloped segments forming a funnel-shaped bottom wall 16).
Thus, we sustain the Examiner's rejection of claim 8 under 35 U.S.C.
§ 103(a) in view ofKubach, Plunkett, and Deaton.
Claim 10
For claim 10, Appellants argue "the Kubach container does not have a
flat top surface" and "balancing multiple containers upon the narrow 'cover
2c' of Kubach would be highly unstable, unsafe, and impractical for
stacking." App. Br. 27. The relevant inquiry is whether the claimed subject
matter would have been obvious to those of ordinary skill in the art in light
of the combined teachings of Kubach, Plunkett, and Deaton. See In re
Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) ("Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references."). The
latter specifically teaches that "[i]t is an object of the invention to provide a
stackable container." Non-Final Act. 6 (referencing Deaton Fig. 1 ); see also
Deaton 1:52-53; In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellants'
argument is not responsive to the rejection as articulated by the Examiner.
Thus, we sustain the Examiner's rejection of claim 8 under 35 U.S.C.
§ 103(a) in view ofKubach, Plunkett, and Deaton.
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Appeal2014-001171
Application 12/684,670
Rejections 3 and 4: Claims 1-10
Because we sustain the Examiner's rejection of claims 1--4, 6-8, and
10 under 35 U.S.C. §103(a) in view ofKubach, Plunkett and possibly
Deaton (Rejections 1-2), we do not reach the Examiner's rejections of these
claims separately under 35 U.S.C. § 103(a) in view of Plunkett, Kubach, and
Deaton (Rejections 3--4). "The affirmance of the rejection of a claim on any
of the grounds specified constitutes a general affirmance of the decision of
the examiner on that claim." 37 C.F.R. § 41.50(a)(l). Regarding Rejection
3, however, we reverse the rejection of claims 5 and 9 using similar
rationales as those presented in Rejection 1 (supra).
DECISION
For the above reasons, we AFFIRM the Examiner's rejection of
claims 1--4 and 6 under 35 U.S.C. § 103(a) as being unpatentable over
Kubach and Plunkett.
We AFFIRM the Examiner's rejection of claim 7, 8, and 10 under 3 5
U.S.C. § 103(a) as being unpatentable over Kubach, Plunkett, and Deaton.
We REVERSE the Examiner's rejections of claims 5 and 9.
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) (2009).
AFFIRMED-IN-PART
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