Ex parte SPECTOR

Board of Patent Appeals and Interferences

Aug 14, 1998

08498375 - (D) (B.P.A.I. Aug. 14, 1998)

Application for patent filed July 5, 1995. 1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 16
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte DONALD SPECTOR
__________
Appeal No. 97-4153
Application 08/498,3751
__________
ON BRIEF
__________
Before CALVERT, MEISTER, and ABRAMS, Administrative Patent
Judges.
ABRAMS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the decision of the examiner finally
rejecting claim 1, which is the only claim remaining of record in
the application.
The appellant's invention is directed to a squeeze canteen
Appeal No. 97-4153
Application No. 08/498,375
2
for producing a soft drink in situ and for dispensing the drink.
It reads as follows:
1. A squeeze canteen for producing in situ a soft drink and
for dispensing this drink comprising:
A. collapsible pouch molded to simulate a character
provided with a female socket creating the mouth of the
pouch and a charge of flavor crystals deposited in the
pouch;
B. a removable male nozzle plug insertable in the
socket to seal the pouch after it has been filled with
liquid to dissolve the flavor crystals to produce a soft
drink, said plug being provided with a normally-closed valve
which when opened and the pouch is then squeezed permits the
discharge of said soft drink from the nozzle plug; said
pouch being formed of synthetic plastic material.
THE REFERENCES
The references relied upon by the examiner to support the
final rejection are:
Nadler 3,157,314 Nov. 17, 1964
Paquette 4,702,473 Oct. 27, 1987
THE REJECTION
Claim 1 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Nadler in view of Paquette.
The rejection is explained in the Examiner's Answer.
The opposing viewpoints of the appellant are set forth in
the Brief and the Reply Brief.
Appeal No. 97-4153
Application No. 08/498,375
3
OPINION
In rejections under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness
(see In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956
(Fed. Cir. 1993)), which is established when the teachings of the
prior art itself would appear to have suggested the claimed
subject matter to one of ordinary skill in the art (see In re
Bell, 991 F.2d 781, 783, 26 USPQ2d 1529, 1531 (Fed. Cir. 1993)).
This is a combination claim in which the combination
comprises a collapsible pouch having a female socket creating the
mouth of the pouch, a charge of flavor crystals deposited in the
pouch, and a removable male plug insertable in the pouch and
provided with a normally closed valve. Nadler discloses a
collapsible pouch for dispensing liquid juices. At the very
least, Nadler fails to disclose or teach the charge of flavor
crystals located in the pouch, and the examiner’s position that
the flavor crystals limitation is merely an intended use is
totally without merit. Paquette, the secondary reference, fails
to alleviate this deficiency. This being the case, the
references fail to establish a prima facie case of obviousness
with regard to the subject matter of the claim.
The rejection is not sustained.
Appeal No. 97-4153
Application No. 08/498,375
4
The decision of the examiner is reversed.
REVERSED
Ian A. Calvert )
Administrative Patent Judge )
)
)
)
James M. Meister ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Neal E. Abrams )
Administrative Patent Judge )
Appeal No. 97-4153
Application No. 08/498,375
5
Michael Ebert
Hopgood Calimafde Kalil
Blaustein & Judlowe
60 East 42nd Street
New York, NY 10165