Ex Parte Perry et al

Board of Patent Appeals and Interferences

Sep 28, 2010

11261110 (B.P.A.I. Sep. 28, 2010)

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.
11/261,110 10/28/2005 Michael R. Perry G180.156.102 / 6476US 7306
25281 7590 09/29/2010
DICKE, BILLIG & CZAJA
FIFTH STREET TOWERS
100 SOUTH FIFTH STREET, SUITE 2250
MINNEAPOLIS, MN 55402
EXAMINER
MCKINLEY, CHRISTOPHER BRIAN
ART UNIT PAPER NUMBER
3781
MAIL DATE DELIVERY MODE
09/29/2010 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL R. PERRY, ARNE H. BRADNER
and GLENN M. LARCHE
____________

Appeal 2009-010665
Application 11/261,110
Technology Center 3700
____________

Before JOHN C. KERINS, STEFAN STAICOVICI and FRED A.
SILVERBERG, Administrative Patent Judges.

KERINS, Administrative Patent Judge.
DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-010665
Application 11/261,110

STATEMENT OF THE CASE
Michael R. Perry et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the Examiner’s final rejection of claims 1-11 and 21, the only
claims pending in the application. We have jurisdiction under 35 U.S.C.
§ 6(b) (2002). We REVERSE.

THE INVENTION
Appellants’ invention is directed to a microwaveable packaged good
article comprising and container and an overcap having a drip bead. Claim
1, reproduced below, is illustrative of Appellants’ invention:
1. A microwaveable packaged good article
comprising:

a container including:

a base,

a continuous wall extending from the base and
terminating in a chime; and

an overcap removably coupled to the container and
including:

a panel,

a neck extending from the panel and terminating in
a drip bead defining a leading end and an interior
surface, the leading end established opposite the
panel,

a skirt radially spaced from the drip bead to define
a channel between the skirt and the interior surface
of the drip bead;

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Application 11/261,110

wherein the chime is received within the channel
and the leading end of the drip bead is free of
contact with the chime upon assembly of the
overcap to the container.

THE REJECTIONS
The Examiner has rejected claims 1-7, 9-11 and 21 under 35 U.S.C.
§ 102(e) as being anticipated by Stull (US 2005/0145627 A1, published July
7, 2005). The Examiner has also rejected claim 8 under 35 U.S.C. § 103(a)
as being unpatentable over Stull.

ISSUE
Does the Stull patent disclose a construction of a microwaveable
packaged good article in which a leading end of a drip bead provided on an
overcap is free of contact with a chime provided on a container upon
assembly of the overcap to the container?
Does the Stull patent disclose a method in which securing the overcap
to the container results in an assembled vertical position of the overcap
relative to the chime being solely dictated by an abutting interface between
the shoulder and the chime?
ANALYSIS
For claim 1, the Examiner employs two different interpretations as to
what portion of the Stull structure is regarded as the claimed “chime” at the
terminal end of the container wall, and, for each interpretation, employs a
different interpretation of what constitutes the leading end of the drip bead
of the overcap disclosed in Stull. (Ans. 5-8). In doing so, the Examiner
finds that a chime “can be simply defined as an edge or brim of a container.”

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Appeal 2009-010665
Application 11/261,110

(Ans. 5). Appellants contend that neither interpretation is consistent with the
claim language and the disclosure of Stull itself.
In a first interpretation, the Examiner maintains that the chime in the
Stull construction is a portion of the top structure excluding an “inner
annular portion extending radially inward from chime (8).” (Ans. 5,
Examiner annotation of Stull Fig. 6A; Ans. 7). This interpretation would
leave the leading end (bottom surface, see Ans. 6, Examiner annotation Stull
Fig. 4) of the drip bead free of contact with the chime once the container and
overcap are assembled together. Appellants contend that the Examiner has
made an arbitrary distinction between two portions of a single, unitary part
in fashioning this interpretation of what structure of Stull is considered to be
the chime. We agree. A thorough reading of the Stull disclosure reveals
that Stull consistently refers to the entire structure at the top of the container
as a “raised lip 8”, and a “container lip 8”. (See, e.g., Stull, p. 1, para.
[0016]; p. 2, para. [0019]). Nowhere does Stull evidence that the inwardly
extending portion of the container lip was considered to be a different
element than the remainder of the lip, all of which is provided to engage
elements of the overcap.
The entire structure 8 at the upper extent of the Stull container is not
excluded by the Examiner’s definition of “chime”. The arbitrary dissection
of container lip 8 into a chime component and an inner annular portion
extending radially inwardly therefrom, is thus unsupported by evidence, and
is not what Stull fairly teaches or suggests. We will not sustain the rejection
under this interpretation of the Stull disclosure.
The second interpretation employed by the Examiner is that the entire
structure 8 at the upper extent of the Stull container is to be regarded as the

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Application 11/261,110

chime, and that the leading end of the drip bead is regarded as the radially
inward facing surface of the lower portion of the drip bead. (See Ans. 6-7,
Examiner annotation of Stull Fig. 4 at 7). This interpretation would, too,
leave the leading end of the drip bead free of contact with the chime once the
container and overcap are assembled together. As noted above, and as
acknowledged by Appellants (Reply Br. 4), this interpretation as to what
constitutes a chime in the Stull structure is appropriate.
Appellants contend that there is no support for the Examiner’s
interpretation that the leading end of the drip bead in Stull can be construed
as the radially inward facing surface of the drip bead. For the reasons set
forth in Appellants’ arguments at pages 4-5 of the Reply Brief, we agree
with Appellants that the Examiner’s interpretation of the structure purported
to meet this element amounts to an unreasonably broad and unsustainable
interpretation of the claimed “leading end” of the “drip bead”.
The rejection of independent claim 1, and of claims 2-7 and 9-11
depending from claim 1, as anticipated by Stull, will thus not be sustained.
Turning to method claim 21, Appellants contend that the cited Stull
patent has not been demonstrated as disclosing that the assembled vertical
position of the overcap relative to the chime is solely dictated by an abutting
interface between the shoulder and the chime. (Appeal Br. 9). More
specifically, Appellants urge that Figure 6B of Stull evidences that the
vertical position of the overcap upon assembly is dictated, at least in part, by
the abutting interface between the leading end of the drip bead and the
inwardly extending portion of the chime, and that any contact between the
shoulder and chime appears to serve little or no purpose. (Id.). We agree
that Figure 6B of Stull illustrates that the contact between the leading end of

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the drip bead and the inwardly extending portion of the chime is initially
dictating the vertical position of the overcap, and there is no disclosure in
Stull that, once the locking arm 32 attains its final position surrounding
chime 8, the leading end of the drip bead will be lifted free of contact with
the inwardly extending portion of chime 8, such that the drip bead will no
longer participate in dictating the vertical position of the overcap. (Stull,
Fig. 6B).
The Examiner’s position is based upon an allegedly inherent
disclosure of the method. (Ans. 4). The reasoning advanced that, despite
the presence of contact between the leading end of the drip bead and the
inwardly extending portion of the chime, the contact does not connote that
this interface is load bearing, and that “such is the function of the shoulder”,
does not rise to the required evidentiary level that the allegedly inherent
feature must necessarily be present in the cited reference. Inherency may
not be established based upon possibilities or probabilities. In re Oelrich,
666 F.2d 578, 581 (C.C.P.A. 1981). We do not find support in Stull for the
proposition that the shoulder of the overcap is solely responsible for the load
bearing function.
The rejection of claim 21 as being anticipated by Stull will thus also
not be sustained.
The further rejection of claim 8 under 35 U.S.C. § 103(a) does
not include any additional findings or any conclusions that remedy the
shortcomings of the teachings of Stull noted above. The rejection of claim 8
will thus also not be sustained.

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Appeal 2009-010665
Application 11/261,110

CONCLUSION
The Stull patent does not disclose a microwaveable packaged good
article in which a leading end of a drip bead provided on the overcap is free
of contact with a chime provided on the container upon assembly of the
overcap to the container.
The Stull patent does not disclose a method in which securing the
overcap to the container results in an assembled vertical position of the
overcap relative to the chime being solely dictated by an abutting interface
between the shoulder and the chime.

DECISION
The decision of the Examiner to reject claims 1-11 and 21 is reversed.

REVERSED

JRG

DICKE, BILLIG & CZAJA
FIFTH STREET TOWERS
100 SOUTH FIFTH STREET
SUITE 2250
MINNEAPOLIS, MINNESOTA 55402

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