12104219 (P.T.A.B. Nov. 21, 2013)

Ex Parte Weyts

Patent Trial and Appeal BoardNov 21, 2013

12104219 (P.T.A.B. Nov. 21, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte PIETER WEYTS ____________________ Appeal 2012-001305 Application 12/104,219 Technology Center 3700 ____________________ Before: CHARLES N. GREENHUT, JAMES P. CALVE, and PATRICK R. SCANLON, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-001305 Application 12/104,219 2 STATEMENT OF CASE Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1- 22. App. Br. 3. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. The claims are directed to a conical container. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A conical-shaped container comprising: a conical main body formed of a collapsible material and including a collapsible back and one or more collapsible sidewalls; and a tab attached to the conical main body and configured to be tom, the tearing of the tab continuing until said tearing reaches the conical main body, whereupon continuing tearing movement separates a top region of the conical main body from a remaining portion of the conical main body, thereby opening the conical main body, wherein the tab is flexible, wherein said collapsible back and said one or more collapsible sidewalls are configured for contents of the conical main body to be dispensed by pressing the collapsible back and sidewalls of the conical main body, and wherein said conical main body includes a bottom seam formed by joining the collapsible back to the collapsible sidewalls. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Rothermel Peppiatt Dunlap Crecelius Doherty US 1,347,231 US 2,134,927 US 2,207,003 US 4,872,571 US 6,874,665 B2 Jul. 20, 1920 Nov. 1, 1938 Jul. 9, 1940 Oct. 10, 1989 Apr. 5, 2005 Appeal 2012-001305 Application 12/104,219 3 Lupi WO 92/12070 Jul. 23, 1992 REJECTIONS Claims 1-5, 7-11 and 22 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Lupi and either Rothermel, Peppiatt or Dunlap. Ans. 4. Claim 6 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Lupi, either Rothermel, Peppiatt or Dunlap, and Crecelius. Ans. 5. Claims 12-21 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Lupi, either Rothermel, Peppiatt or Dunlap, and Doherty. Ans. 6. OPINION Regarding independent claims 1 and 12, the Examiner found Lupi to disclose “a conical-shaped container comprising a conical main body 1 formed of a collapsible material and including a collapsible back 10 and one or more collapsible sidewalls.” Ans. 4. The Examiner bases this determination on the finding that “Lupi discloses, in figs. 1-3, a conical- shaped container being made from material that can be folded, torn off, [or] bent off.” Ans. 7. While Lupi’s tab 4 may be torn or bent there is no evidence that the back and sidewalls have the same capability. Nor is there any evidence that the embodiment depicted in Figures 1-3 of Lupi can be folded. The Examiner does not point to any evidence as to the material Lupi is fabricated from. Thus, we agree with Appellant that “Lupi says nothing regarding the container being made of a collapsible material, nor that the container has a collapsible back or collapsible sidewalls, nor that the Appeal 2012-001305 Application 12/104,219 4 contents of the container are dispensed by pressing or manipulating the walls or back of the container.”1 App. Br. 10. Such features are not necessary for Lupi’s purpose of pouring milk. Id. DECISION The Examiner’s rejections are reversed. REVERSED mls 1 Appellant discloses that the back 42 and sidewalls 41 of the cone can be made of collapsible, waterproof material such as plastic or tin foil. Spec. 9, ll. 20-22; Spec. 15, ll. 5-8.