Ex Parte Vinseiro et al

Patent Trial and Appeal Board

Apr 19, 2017

12714752 (P.T.A.B. Apr. 19, 2017)

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.
12/714,752 03/01/2010 Juan Carlos Vinseiro 11258M 7425
27752 7590 04/21/2017
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
COLLINS, RAVEN
ART UNIT PAPER NUMBER
3788
NOTIFICATION DATE DELIVERY MODE
04/21/2017 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):
centraldocket. im @ pg. com
pair_pg @ firsttofile. com
mayer.jk @ pg. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JUAN CARLOS VINSEIRO, MARTIN JAY MAROTTI, and
RAYMOND CHARLES BELL
Appeal 2015-007130
Application 12/714,7521
Technology Center 3700
Before MICHELLE R. OSINSKI, THOMAS F. SMEGAL, and BRENT M.
DOUGAL, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s
rejection2 of claims 1 and 3—7 under 35 U.S.C. § 103(a) as obvious over
Lajovic (US 3,906,070, iss. Sept. 16, 1975) and Paoletti (US 2005/0023173
Al, pub. Feb. 3, 2005).3 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is The Procter & Gamble
Company. Br. 1.
2 Appeal is taken from the adverse decision of the Examiner as set forth in
the Final Office Action, dated January 13, 2015 (“Final Act.”).
3Claim 2 has been canceled. See Amendment filed March 18, 2014.
Appeal 2015-007130
Application 12/714,752
CLAIMED SUBJECT MATTER
Claim 1, the sole independent claim, is reproduced below and
illustrates the claimed subject matter.
1. A closure system for a container having a body, a neck
portion and an opening, said closure system comprising
a) a cap fitted to cover and seal the opening of said
container, said cap comprising a cap top and sidewall connected
to and-extending from said cap top to a cap bottom and further
having an extension of about 2 mm to about 20 mm beyond said
cap top thereby defining a peripheral rim for an open air void
created from said sidewall extension and said cap top, said
sidewall having an upper portion flaring outward thereby
defining a truncated inverted cone shape for the cap,
b) an overwrap in tight conformance around the cap and at
least the neck portion, of said container, said overwrap extending
at least 1 mm beyond said peripheral rim to form a finger grip
tab and not adhered to the cap top; and
wherein the connection between the cap top and sidewall
forms an upper and lower void space.
ANALYSIS
Obviousness of Claims 1 and 3—7 over Lajovic and Paoletti
Appellants argue claims 1 and 3—7 together in contesting the rejection
of these claims as obvious over Lajovic and Paoletti. See Br. 3^4. We
select claim 1 as the representative claim for this group, and the remaining
claims stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
Regarding claim 1, the Examiner finds that Lajovic discloses a closure
system for a container having a body, a neck portion and an opening
including, inter alia, a cap with a cap top having a side wall extending
beyond the cap top to form an upper void space, but that Lajovic “fails to
disclose an overwrap extending over the cap.” Final Act. 3^4. However, the
Examiner also finds that Paoletti teaches “an overwrap 10 in tight
2
Appeal 2015-007130
Application 12/714,752
conformance around the cap 18 and at least the neck portion, of said
container, said overwrap extending at least 1 mm beyond said peripheral rim
to form a finger grip tab 11 and not adhered to the cap top.” Id. at 4 (citing
Paoletti, 120,11. 11—16; Figs. 2 and 6).
Based on the foregoing, the Examiner determines that it would have
been obvious “to modify Lajovic to include [the] outer wrap of Paoletti in
order to further protect the outer shell and inner contents of the shell,” and
also “inform the user of tampering.” Id. The Examiner also points out that
“Paoletti teaches the overwrap is a shrink band including a weakened portion
comprising one or more lines of perforation 19 (citing Paoletti, 122; Fig.
2),” and also reasons that it would have been obvious “to modify Lajovic to
include the perforation lines in order to easily lift and tear the shrink wrap to
gain access to the contents of the container.” Id. at 5.
In taking issue with the analysis and conclusions presented in the
Final Office Action, Appellants assert that “there is no motivation,
suggestion, or teaching provided to one of ordinary skill in the art to
combine Lajovic and Paoletti to produce the presently claimed invention,”
reasoning that “[t]he only motivation to combine Lajovic with Paoletti is
provided in the disclosure of the present invention.” Br. 3. In particular,
Appellants contend while “Paoletti discloses an overwrap,” that “there is no
disclosure in Lajovic of a need for an overwrap,” Id. at 4.
However, this argument is foreclosed by KSR Int 7 Co. v. Teleflex Inc.,
550 U.S. 398, 402 (2007), in which the Court rejected the rigid requirement
of a teaching, suggestion, or motivation to combine known elements in order
to show obviousness. Id. at 415. Thus, “if a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
3
Appeal 2015-007130
Application 12/714,752
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.” Id. at 417.
We agree with the Examiner that “the shrink wrap surrounding the container
of Paoletti serves to inform the user of tampering,” and that “[t]his can also
be true for combining [Lajovic] with Paoletti as well as in the present
application.” Ans. 5. Appellants have not apprised us of any error in the
Examiner’s findings or conclusions, and we find none.
Appellants also contend that “an overlapping overwrap would not
work on a toothpaste tube as the cap [of Lajovic] is typically too small in
diameter to provide enough area for an overwrap to overlap the top to form a
finger grip tab, as in the present invention.”4 Br. 4. However, Appellants
provide no evidence that the overwrap would not work, and only assert that
the cap would typically be too small. Furthermore, in merely reciting “a
closure system for a container,” the cap of claim 1 is not limited in size to
exclude a toothpaste tube.5 See id. at 5, Claims App.
Moreover, the rejection is not based on a bodily incorporation of
Paoletti’s overwrap onto Lajovic’s cap. See In re Keller, 642 F.2d 413, 425
(CCPA 1981) (citations omitted) (“The test for obviousness is not whether
the features of a secondary reference may be bodily incorporated into the
structure of the primary reference. . . . Rather, the test is what the combined
teachings of those references would have suggested to those of ordinary skill
4 Lajovic’s disclosure is not limited to toothpaste tubes. See Lajovic, col. 1,
11. 6-9.
5 We note that the Specification, at page 4, lines 31—33, discloses that “The
shape, size and type of material from which the container body and closure
or cap are constructed may be widely varied without departing from the
spirit of the invention.”
4
Appeal 2015-007130
Application 12/714,752
in the art.”). The Examiner has asserted that changing the size of the cap is
within the level of ordinary skill in the art. Final Act. 4 (