Gale L. Amacher

Patent Trials and Appeals Board

Jan 27, 2020

15418957 - (D) (P.T.A.B. Jan. 27, 2020)

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.
15/418,957 01/30/2017 Gale L. Amacher JR. ENG3081-002B 6391
8698 7590 01/27/2020
STANDLEY LAW GROUP LLP
6300 Riverside Drive
Dublin, OH 43017
EXAMINER
STCLAIR, ANDREW D
ART UNIT PAPER NUMBER
3753
NOTIFICATION DATE DELIVERY MODE
01/27/2020 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):
standleydocketing@standleyllp.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GALE L. AMACHER, JR.

Appeal 2019-002626
Application 15/418,957
Technology Center 3700
____________

Before BRETT C. MARTIN, MICHAEL J. FITZPATRICK, and
LISA M. GUIJT, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL

Appellant, Englefield, Inc.,1 appeals under 35 U.S.C. § 134(a) from
the Examiner’s final decision rejecting claims 1–20. We have jurisdiction
under 35 U.S.C. § 6(b).
We Affirm.

1 Appellant is the “applicant” under 37 C.F.R. § 1.42(b) and identifies itself
as the sole real party in interest. Appeal Br. 3.
Appeal 2019-002626
Application 15/418,957

2
STATEMENT OF THE CASE
The Specification
The Specification’s disclosure “relate[s] generally to an apparatus and
system for storing and dispensing liquids, such as oil.” Spec. ¶2.
The Claims
Claims 1–20 are rejected. Final Act. 1. Claim 1 is illustrative and
reproduced below.
1. A system for storing and dispensing oil
comprising:
an upper shelf comprising a downward sloping surface
configured to receive at least one oil bucket that has a
dispensing mechanism positioned on an end thereof, said upper
shelf configured to receive said at least one oil bucket in a
lateral position such that a side surface of the oil bucket is
configured to rest on the downward sloping surface; and
a lower shelf positioned below said upper shelf and
configured to receive at least one dispensing container that has
an aperture located thereon, said lower shelf configured to
receive said at least one dispensing container in an upright
position;
wherein a leading edge of said lower shelf protrudes
beyond a leading edge of said upper shelf such that the aperture
of a respective said dispensing container is adapted to be
positioned below the dispensing mechanism of a respective said
oil bucket to facilitate dispensing of a content of said respective
oil bucket into said respective dispensing container.
Appeal Br. 16.
Appeal 2019-002626
Application 15/418,957

3
The Examiner’s Rejections
The rejections before us, all of which are pursuant to 35 U.S.C. § 103,
are:
1. claims 1–6 and 8 over Numberger2 and Dominos3 (Final Act.
2);
2. claim 7 over Numberger, Dominos, and Arlt4 (id. at 6);
3. claim 9 over Numberger, Dominos, and Swanson5 (id.);
4. claims 10–13, 15, and 17–19 over Numberger, Dominos, and
Selina6 (id. at 7);
5. claim 14 over Numberger, Dominos, Selina, and Arlt (id. at
11);
6. claim 16 over Numberger, Dominos, Selina, and Swanson
(id.)7; and
7. claim 20 over Numberger, Dominos, Selina, Swanson, and
Lester8 (id.).

2 DE 3324977 A1, published Jan. 24. 1985 (“Numberger”). Numberger is a
German language document. The record also includes an English translation
of Numberger’s abstract (“Numberger Abstract”).
3 US 3,286,849, issued Nov. 22, 1966 (“Dominos”).
4 US 1,700,212, issued Jan. 29, 1929 (“Arlt”).
5 US 2006/0266726 A1, published Nov. 30, 2006 (“Swanson”).
6 US 2012/0085793 A1, published Apr. 12, 2012 (“Selina”).
7 The examiner also identifies Lester (see infra n.8) as a reference but does
not apply it in this rejection.
8 US 7,997,461 B2, issued Aug. 16, 2011 (“Lester”).
Appeal 2019-002626
Application 15/418,957

4
DISCUSSION
Rejection 1
Appellant argues the patentability of the rejected claims, namely
claims 1–6 and 8, together. Appeal Br. 11–15. We select claim 1 as
representative. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner found that Numberger discloses the subject matter of
claim 1 except that “Numberger does not disclose that the upper shelf has a
downward sloping surface configured such that a side surface of the bucket
can rest on the downward sloping surface.” Final Act. 2–4 (citing
Numberger Figs. 4–5). The Examiner found that “Dominos teaches that it is
known to provide such a shelf with a downward sloping surface (16) that
functions to contact and support a side of the container (17).” Id. at 4 (citing
Dominos Fig. 1).” The Examiner concluded:
It would have been obvious to one skilled in the art to
provide the device of Numberger with a downward sloping
surface as a substitute for the back plate (14) as an equivalent
structure for performing the same function of tilting the
container. Additionally, doing so would merely amount to a
simple substitution of one known element for another to obtain
predictable results. See e.g. MPEP 2143, citing KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398 (2007).
Id.
Appellant argues against the rejection first on the basis that “the
proposed combination of Numberger with Dominos would impermissibly
change Numberger’s principle of operation.” Appeal Br. 11. Appellant
asserts that “an essential feature of [Numberger] is the ability to rapidly
insert bottles into the device while also preventing lateral movement of the
inserted bottles.” Id. at 12. Thus, according to Appellant, “Numberger’s
principle of operation is the use of a rear and forward set of shelves having
Appeal 2019-002626
Application 15/418,957

5
semi-circular shaped recesses that suspend individual bottles in a declined
position.” Id. (citing Numberger Figs. 4–5).
The Examiner responds that the Numberger’s principle of operation is
not limited to the specific embodiment of Numberger’s Figure 4 (or
Figure 5) but rather is more generally “to pour the contents of one container
into another by supporting the dispensing container (30) in a downwardly
[tilted] position with the receptacle container (20) beneath it.” Ans. 3.
We agree with the Examiner that the proposed modification would
operate through the same principle, albeit with a somewhat modified
structure holding the pouring container in downwardly sloping orientation.
Id. at 4. Indeed, the proposed modification of Numberger would preserve,
what Appellant has characterized as an “essential feature” of Numberger:
“the ability to rapidly insert bottles into the device while also preventing
lateral movement of the inserted bottles.” See Appeal Br. 12.
The Examiner proposed that a person of ordinary skill in the art would
have substituted a downward sloping surface, as taught by Dominos, for
Numberger’s back plate only. Final Act. 4. Thus, the proposed
modification, would preserve the front plate of Numberger, which includes
semi-circular recesses that would preclude some lateral movement. Id.
That the front plate alone would not preclude lateral movement as
well as both plates in combination does not render the proposed modification
non-obvious. As the Examiner points out, the law recognizes that “[a] given
course of action often has simultaneous advantages and disadvantages, and
this does not necessarily obviate motivation to combine.” Allied Erecting v.
Genesis Attachments, 825 F.3d 1373, 1381 (Fed. Cir. 2016) (cited at
Ans. 5.). “The fact that the motivating benefit comes at the expense of
Appeal 2019-002626
Application 15/418,957

6
another benefit, however, should not nullify its use as a basis to modify the
disclosure of one reference with the teachings of another. Instead, the
benefits, both lost and gained, should be weighed against one another.”
Winner Int’l Royalty Corp. v. Wang, 202 F.3d 1340, 1349 (Fed. Cir. 2000).
And, as the Examiner found, substituting the downward sloping surface of
Dominos “has an advantage of being able to accommodate containers of
different sizes because it is not limited by the size of the semicircular
recesses in a back plate.” Ans. 5. This is a sufficient reason with rational
underpinning to support the conclusion of obviousness.
Appellant also argues that “simple substitution” of Dominos’s
downward sloping surface for Numberger’s back plate 14 would not work
because the person of skill in the art would slope that surface downward
from the bottom of Numberger’s back plate 14 and, thus, the substituted
surface would “extend[] below or well short of the front plate 12.” Appeal
Br. 13. This argument is not persuasive. As the Examiner points out, a
person of ordinary skill in the art is a person of “ordinary creativity” and is
not an “automaton.” Ans. 6 (quoting KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398 (2007)).
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 the references would have suggested
to those of ordinary skill in the art.
In re Keller, 642 F.2d 413, 425 (CCPA 1981).
The Examiner has identified teachings in the prior art and offered a
reasoned analysis based on rational underpinning that a person of ordinary
skill in the art would have combined those teachings in a manner
encompassed by claim 1. Moreover, Appellant has not apprised us of
Appeal 2019-002626
Application 15/418,957

7
Examiner error in either regard. Thus, we affirm the rejection of claim 1, as
well as that of claims 2–6 and 8, which fall therewith. See 37 C.F.R.
§ 41.37(c)(1)(iv).
Rejections 2–7
In these rejections, the Examiner rejected the remaining claims over
Numberger, Dominos, and one or more additional prior art references. Final
Act. 6–15. Appellant does not present arguments against these rejections
beyond those already considered and found unavailing above. See Appeal
Br. 11–15 (arguing all claims and all rejections together). Accordingly, for
similar reasons, we affirm Rejections 2 through 7.

Appeal 2019-002626
Application 15/418,957

8
SUMMARY
Claims
Rejected
35 U.S.C. § References Affirmed Reversed
1–6, 8 103 Numberger,
Dominos
1–6, 8
7 103 Numberger,
Dominos, Arlt
7
9 103 Numberger,
Dominos,
Swanson
9
10–13, 15,
17–19
103 Numberger,
Dominos, Selina
10–13, 15,
17–19

14 103 Numberger,
Dominos,
Selina, Arlt
14
16 103 Numberger,
Dominos,
Selina, Swanson
16
20 103 Numberger,
Dominos,
Selina,
Swanson, Lester
20
Overall
Outcome
1–20

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED