Ex Parte Weintroub et al

Board of Patent Appeals and Interferences

Jan 23, 2012

10876272 (B.P.A.I. Jan. 23, 2012)

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.
10/876,272 06/25/2004 Jeremy Neil Weintroub 745691-33 8678
22204 7590 01/23/2012
NIXON PEABODY, LLP
401 9TH STREET, NW
SUITE 900
WASHINGTON, DC 20004-2128
EXAMINER
DEMEREE, CHRISTOPHER R
ART UNIT PAPER NUMBER
3782
MAIL DATE DELIVERY MODE
01/23/2012 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 JEREMY NEIL WEINTROUB
and ADRIAN MARK WEINTROUB
____________

Appeal 2009-014486
Application 10/876,272
Technology Center 3700
____________

Before GAY ANN SPAHN, EDWARD A. BROWN, and
MICHAEL C. ASTORINO, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-014486
Application 10/876,272

2
STATEMENT OF THE CASE
Jeremy Neil Weintroub and Adrian Mark Weintroub (Appellants)
seek our review under 35 U.S.C. § 134 of the Examiner’s rejections of:
claims 1-12 and 14-23 under 35 U.S.C. §102(b) as anticipated by Wendon
(EP 0 639 512 A1, pub. Feb. 22, 1995); and claim 13 under 35 U.S.C.
§ 103(a) as unpatentable over Wendon and Ringler (US 2,338,260, iss. Jan.
4, 1944). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE.

The Claimed Subject Matter
The claimed subject matter is directed to a reclosable carton and a
blank for use in forming a carton. Claim 1, reproduced below, with italics
added, is illustrative of the subject matter on appeal.
1. A reclosable carton comprising:
front, rear and side panels, the side panels being
configured to deform when the front and rear panels are brought
together, such that one or more holding areas are created
between an inside face of a side panel and an inside face of one
of the front or rear panels, the one or more holding areas having
an increased holding effect as the front and rear panels are
brought closer together,
wherein the front and rear panels are each provided
with a flap at a top portion thereof,
wherein a reclosure operation, the front and rear
panels are movable together and the flaps are positionable in a
common one of said holding areas, and
wherein at least one of said flaps has substantially
the same width along its length as the width of the panel from
which it extends such that, when positioned in said common
one of said holding areas, a clamping interference fit is attained
between edge portions of the flap and the common holding
area.

Br. 15.
Appeal 2009-014486
Application 10/876,272

3
Independent claim 16 is directed to a reclosable carton including, inter
alia, side panels, that in a closed position of the carton, define a holding
channel together with one of the front and rear panel flaps, and the other of
the front and rear panel flaps being insertable into the holding channel and
held therewithin through a clamping interference fit action of the holding
channel on edge portions of the flaps. Br. 17.
Independent claim 19 is directed to a blank for use in forming a carton
including, inter alia, side panels that deform to form a channel with one of
the front and rear panel flaps, and the other of the front and rear panel flaps
being configured to be clamped in an interference fit at edge portions thereof
when inserted in the channel and when the front and rear panels are brought
together. Br. 17-18.

OPINION
Anticipation based on Wendon
The Examiner determines that Wendon anticipates independent claims
1, 16, and 19 by disclosing a reclosable carton and blank for use in forming a
carton including, inter alia, a clamping interference fit between edge
portions of the flap and the common holding area or channel. Ans. 3-5 and
7. More particularly, the Examiner interprets Wendon to disclose that when
the front and rear panel flaps 16, 17 are fully inserted into the carton 30, a
clamping interference fit occurs at positions on the left and right edges of the
flaps 16, 17 where the width of the flaps 16, 17 is only slightly less than the
width of the front and rear panels 11, 12 from which the flaps 16, 17 extend,
i.e., the left and right edges of flaps 16, 17 immediately adjacent the front
and rear panels 11, 12, as pointed to by arrows in the Examiner’s annotated
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-

Appeal 2009-014486
Application 10/876,272

5
in Figure 4, the edges of flap 16 touch or contact the common holding areas
or channels created between the side panel flaps 18, 19 and side panels 13,
14 deformed or bent at the lines of weakening 24, 25 (see Figure 2) and flap
17. Thus, a clamping interference fit is not attained. Br. 10. Appellants
specifically point to Wendon’s disclosure, at column 3, lines 11-15, which
states that “since the dimension of each of the flaps 16, 17 is less than the
corresponding dimension of the front and rear panels 11, 12, the flaps are
easily folded inwardly of the carton 30 without distortion of the flaps 16, 17”
as supporting their contention that there is no contact between the edges of
flaps 16, 17 and the common holding areas or channels. Br. 11.
We are persuaded by Appellants’ contentions. Appellants’ reference
to Wendon’s column 3, lines 11-15 is compelling since it appears to describe
the left and right edges of Wendon’s flap 16 as not touching or contacting
the common holding areas or channels. Without touching or contact
between the left and right edges of the flap 16 and the common holding
areas or channels of the carton 30 in which the flap 16 is inserted, no
clamping interference fit, as is required by all of independent claims 1, 16,
and 19, can be attained.
In view of the foregoing, we do not sustain the Examiner’s rejection
of independent claims 1, 16, and 19 under 35 U.S.C. § 102(b) as anticipated
by Wendon, and dependent claims 2-12, 14, 15, 17-18, and 20-23 fall
therewith.
Obviousness based on Wendon and Ringler
The Examiner finds that the combination of Wendon and Ringler
disclose claim 13’s subject matter that “the sides of the substantially
triangular score line are arcuate.” Ans. 8-9. Appellants offer no arguments
Appeal 2009-014486
Application 10/876,272

6
of error with respect to the Examiner’s rejection of claim 13 other than those
offered for independent claim 1 and found unpersuasive for the reasons
discussed supra. Since the Examiner’s rejection of claim 13 is based upon
the Examiner’s erroneous finding that Wendon teaches a clamping
interference fit between the edges of the flap 16 and the common holding
area or channel and since the Examiner’s application of Ringler does not
cure this deficiency, we also do not sustain the Examiner’s rejection of claim
13 under 35 U.S.C. § 103(a) as unpatentable over Wendon and Ringler.

DECISION
We reverse the Examiner’s decision to reject claims 1-23.

REVERSED

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