Gosselin, Daniel Albert. et al.

Patent Trials and Appeals Board

Apr 8, 2020

15470680 - (D) (P.T.A.B. Apr. 8, 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.
15/470,680 03/27/2017 Daniel Albert Gosselin 35052.003C2 9286
34395 7590 04/08/2020
OLYMPIC PATENT WORKS PLLC
P.O. BOX 4277
SEATTLE, WA 98104
EXAMINER
THOMAS, KAREEN KAY
ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
04/08/2020 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):
joanne@olympicpatentworks.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DANIEL ALBERT GOSSELIN
and ALFRED RICHARD BALAKIER
____________

Appeal 2019-002010
Application 15/470,680
Technology Center 3700
____________

Before JEREMY M. PLENZLER, LISA M. GUIJT, and
FREDERICK C. LANEY, Administrative Patent Judges.

Opinion of the Board filed by GUIJT, Administrative Patent Judge.
Opinion Dissenting-in-Part filed by LANEY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the rejection
of claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “[A]pplicant” as defined in 37
C.F.R. § 1.42. Appellant identifies RedCap, LLC as the real party in
interest. Appeal Br. 1.
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THE INVENTION
Appellant’s invention relates to “various types of containers,
including pill bottles, and, in particular, to a container with a dispensing
schedule that indicates when the contents within the container should next be
accessed.” Spec. 1:10–12. Claims 1 and 15 are the independent claims on
appeal. Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A container with a dispensing schedule, the container
consisting of:
a conventional bottle with a threaded neck; and
a cap assembly that includes
a threaded cap with a display aperture, and
a schedule display mounted within the threaded cap that
includes a circularly ordered set of indications,
interoperates with the threaded cap and bottle to
advance the display aperture to a next indication of the
schedule display when the cap assembly is screwed onto
the bottle, and
interoperates with the threaded cap and bottle to
prevent indication advancement when the cap assembly
is unscrewed and removed from the bottle.

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THE REJECTIONS2,3
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Kramer US 4,365,722 Dec. 28, 1982
The following rejections are before us for review:
I. Claims 1–20 stand rejected under 35 U.S.C. § 112(b) as
indefinite.
II. Claims 1–4, 6, 8, 15, and 16 stand rejected under 35 U.S.C.
§ 102(a)(1) as anticipated by Kramer.
III. Claims 5 and 7 stand rejected under 35 U.S.C. § 103 as
unpatentable over Kramer.4
OPINION
Rejection I
Regarding independent claims 1 and 15, the Examiner finds that “it is
not clear . . . what structure interoperates.” Final Act. 4. The Examiner

2 The Examiner’s rejection of claims 1–7 and 8 on the ground of non-
statutory double patenting as unpatentable over claims 1–8 and 15 of co-
pending U.S. Application No. 15/331,873 is moot, because co-pending U.S.
Application No. 15/331,873 has been abandoned. Final Act. 3; Notice of
Abandonment (dated Sept. 6, 2018); Reply Br. 2.
3 Although the Examiner indicates that claims 9-14 and 17-20 are “objected
to as being dependent upon a rejected base claim, but would be allowable if
rewritten in independent form including all of the limitations of the base
claim and any intervening claims,” all of the pending claims (i.e., claims 1–
20) currently stand rejected under Rejection I. Final Act. 7.
4 The inclusion of claim 6 is an apparent typographical error, in view of the
Examiner’s rejection of claim 6 pursuant to Rejection II and lack of analysis
of claim 6 pursuant to Rejection III.
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determines that claim 1 “would be clearer if the claim stated ‘said schedule
display. . .interoperates. . . said schedule display interoperates. . . ’.” Ans. 8.
Appellant argues correctly that claims 1 and 15 clearly require that
“the schedule display interoperates with the threaded cap and the bottle.”
Appeal Br. 11. The paragraph indentations of claims 1 and 15 make clear
that the schedule display of the cap assembly, which is mounted within the
cap of same cap assembly, is limited by three claim recitations: (i) includes
a circularly ordered set of indications; (ii) interoperates with the cap and
bottle to advance the display aperture under certain circumstances; and (iii)
interoperates with the cap and bottle to prevent indication advancement
under certain circumstances. Notably, the schedule display and the cap are
separate structures, which are each included in the cap assembly, as claimed.
Thus, claims 1 and 15 are clear that the schedule display is the claim element
that interoperates with the cap and the bottle.
Accordingly, we do not sustain the Examiner’s rejection of claims 1
and 15, and claims 2–14 and 16–20 depending therefrom, as indefinite
pursuant to 35 U.S.C. § 112(b).
Rejection II
Independent claim 1 and dependent claim 8
The Examiner relies on the “ophthalmic drop dispensing bottles”
embodiment of Kramer, which is depicted in Figures 8–10, as anticipating
independent claim 1. Kramer 6:50–52; see also Kramer 3:8–16. Figure 9 is
reproduced below.
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Figure 9 of Kramer depicts an exploded view of an ophthalmic drop
dispensing bottle, including outer housing 21, inner housing 41, indicia disc
62, and bottle 12.
Regarding independent claim 1, the Examiner finds that Kramer’s
container consists of a conventional bottle with a threaded neck (i.e.,
container 12) and a cap assembly (i.e., closure member 11), as claimed.
Final Act. 5 (citing Kramer, Figs. 8, 9). The Examiner also finds that
Kramer’s cap assembly includes a threaded cap with a display aperture (i.e.,
at least inner and outer housings 21, 41 “when assembled”) and a schedule
display (i.e., indicia 62) mounted within the threaded cap that includes a
circularly ordered set of indications.5 Id. (citing Fig. 9). The Examiner

5 We do not agree with the Examiner that Kramer’s indicia 62 can be relied
on to disclose both the cap and the schedule display, and therefore, we
interpret the Examiner’s findings as relying on Kramer’s inner and outer
housings 21, 41, when assembled, as disclosing the claimed cap, and indicia
62 as disclosing the claimed schedule display, which is consistent with the
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further finds that, in Kramer, indicia 62 interoperates with inner and outer
housings 21, 41 and container 12 (i) to advance the display aperture to a next
indication of the schedule display when the cap assembly is screwed onto
the bottle; and (ii) to prevent indication advancement when the cap assembly
is unscrewed and removed from the bottle, as claimed. Id. (citing Figs. 8, 9).
Appellant argues that Kramer fails to disclose “a display schedule
[that] is automatically advanced when the cap is screwed onto the
container;” instead, Appellant submits that Kramer’s schedule display is
“manually advanced by the user.” Appeal Br. 14 (emphasis added); Reply
Br. 3 (explaining with reference to the claimed invention that “[s]ince a
component of a mechanical device advances the display aperture to a next
indication, then the display aperture is automatically advanced”)). In this
respect, Appellant submits that “Kramer is unrelated to the currently claimed
container that automatically advances a schedule display.” 6 Id. Further,
Appellant argues that Kramer fails to disclose that

Examiner’s further findings regarding the claimed interoperably of the cap
and the schedule display. This interpretation is also consistent with
Appellant’s arguments.
6 To the extent Appellant is arguing that Kramer is not analogous art to the
claimed invention (i.e., unrelated), and therefore, improperly relied on by the
Examiner, we find that the field of endeavor of the claimed invention is
“containers, including pill bottles, and in particular, a container with a
dispensing schedule that indicates when the content within the container
should next be accessed,” regardless of automatic or manual advancement of
the indicia. See Spec. 10–12 (“TECHNICAL FIELD”); id. at 4:18–20
(disclosing, with respect to an embodiment of the invention, that the indicia
may be automatically or “manually advanced using manual-advancement
features”); see also Appeal Br. 25, 27 (Claims App.) (claims 3, in relevant
part: “wherein the schedule display includes one or more manual-
manipulation features that allow for manual indication advancement”).
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indicia disc 62 interoperates with Kramer’s inner housing 41 and
bottle 12 to advance the display aperture to a next indication of
the indicia disc when the closure member 11 is screwed onto the
bottle, nor does [Kramer’s passage at column 7, lines 26–32]
mention anything about advancement of a display aperture to a
next indication.
Appeal Br. 17 (emphasis added); Reply Br. 5 (arguing that Kramer’s Figure
8 fails to disclose “‘the entire bottle and closure’ operating ‘together to
advance the schedule display,’” but rather Figure 8 “is a static portrayal of a
container and does not portray any type of dynamic operation”)).
We are not persuaded by Appellant’s argument. Kramer discloses,
with reference to Figure 10, that
outer housing 21 is rotatably mounted to the inner housing 41
and is secured in place by a retaining groove 39 extending around
the base of the inner wall of the outer housing 21 for receiving
the outwardly projecting ridge 42 of inner housing 41.
Kramer 7:6–10. Kramer also discloses that
abutment means on the inner and outer housings, 21 and 41, are
positioned to mutually engage during the relative rotation of the
inner and outer housings in one direction an[d] yieldingly resist
the relative rotation of the inner and outer housing in the
opposite direction.
An aperture 23 extends through the conical portion 24 of
the outer housing 21. Indicia 68 are disposed on the indicia disc
or means 62 in a spaced manner corresponding to the spacings of
the abutment members such that at least one of the indicia is
visible through the aperture when the abutment members are
engaged. When the closure member 11 is rotatably mounted to
the container 12, the wedge-shaped rib 25 on the outer housing
21 engages a predetermined triangular groove 42 in the inner
housing 41 to indicate the desired indicia and that the closure
member 11 is secured to the container 12.
Kramer 7:26–44 (emphasis added).
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Appellant acknowledges that the claim term “interoperability” was
chosen to broadly read on many different ways for the schedule display, cap,
and bottle to work in conjunction to advance the display aperture to a next
indication of the schedule display when the cap assembly is screwed onto
the bottle. See Appeal Br. 11 (“each of the schedule-display and threaded-
cap subcomponents of the cap assembly includes multiple features that
interoperate at a detailed subcomponent-feature level, but the types, sizes,
and locations of these features may vary with varying implementations”; “an
applicant may choose to broadly claim a subcomponent to include various
different implementations of the subcomponent”). Appellant submits that
[the claim term “interoperability”] is clear from the well-
understood English language meaning of the term “interoperate.”
For example, one could assert that the fingers and palms of two
right hands interoperate during a handshake. One could also
assert, based on that assertion, that the two right hands
interoperate during a handshake.
Id. at 12.
The plain language of claim 1 requires “advance[ing] the display
aperture to a next indication of the schedule display when the cap assembly
is screwed onto the bottle” based on interoperability of the “schedule display
. . . with the threaded cap and bottle.” We determine that a preponderance of
the evidence supports the Examiner’s finding that indicia disc 62, by virtue
of being mounted fixedly on inner housing 41, interoperates (or, broadly,
works in conjunction) with inner and outer housings 21, 41, and container 12
to advance the display aperture of outer housing 41 to a next indication of
indicia disc 62, when closure assembly 11 is screwed onto container 12, as
such movement is only allowable during rotation of closure member 11 onto
container 12, but not during counter-rotation, according to the emphasized
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passages from Kramer supra. Nor are we aware of anything further required
by the language of claim 1 with respect to automatic advancement, as argued
by Appellant. For example, claim 1 does not specify any particular
mechanical interaction between specific structures to achieve the function of
advancing the display aperture to a next indication of the schedule display
when the cap assembly is screwed onto the bottle. In other words, the
interoperability between the claimed sub-components of the cap assembly
and bottle is functional (i.e., to achieve a result)7, and Kramer’s structures as
identified by the Examiner perform the claimed function. Lighting World,
Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1362–63 (Fed. Cir. 2004)
(explaining that unintended breadth is a known risk of functional claiming
without resort to means-plus-function format).
Appellant also argues, regarding the claimed cap assembly, that the
Specification “makes clear” that the cap assembly is a “two-piece structure,”
and that the Examiner errs by finding that Kramer’s inner and outer housings
21, 41 (i.e., cap) and indicia 62 (i.e., schedule display), which are three
pieces, disclose a two-piece cap assembly, when assembled. Appeal Br. 15
(citing Spec. 4:32–33 (“The cap assembly of the CDS8 implementation
shown in Figure 1 has two single-piece components.”)); Reply Br. 3–5
(arguing that “[c]laim 1 clearly and unambiguously claims the cap assembly
to include two subcomponents, the threaded cap and the schedule display,
and the current application clearly illustrates this to be the case”). Similarly,

7 This decision takes no position on the propriety of such purely functional
claiming, which is at the exact point of novelty in the claim before us. We
additionally note that Appellant does not contend these functional limitations
invoke a means-plus-function construction under 35 U.S.C. § 112(f).
8 See Spec. 3:3–4 (disclosing that CDS is an acronym for a Container with a
Dispensing Schedule).
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Appellant argues, regarding the claimed cap of the cap assembly, that “no
single component of Kramer’s closure member includes both threading and
a display aperture.” Appeal Br. 16; cf. claim 1 supra (“a threaded cap with a
display aperture”). In other words, Appellant argues that the Examiner errs
by finding that Kramer’s inner and outer housings 21, 41, which are two
pieces, disclose a single piece cap.
However, Appellant does not provide any support from the language
of claim 1 for limiting the cap assembly to a two-piece structure and the cap
of the cap assembly to a single-piece structure. Rather, claim 2, which
depends from independent claim 1, recites, in relevant part: “wherein the
cap, the schedule display, and the bottle are each single-piece components,”
which evidences that the cap is not limited to a single-piece component in
independent claim 1. Appeal Br. 25 (Claims App.) (emphasis added).
Moreover, Appellant’s reliance on the Specification alone for requiring a
claim interpretation that requires the cap of claim 1 to be a single piece is
misplaced. A particular embodiment appearing in the written description
may not be read into the claim if the claim language is broader than the
embodiment. See Superguide Corp. v. DirecTV Enter., Inc., 358 F.3d 870,
875 (Fed. Cir. 2004). Thus, we are not persuaded by Appellant’s argument
that the Examiner errs by relying on Kramer’s inner and outer housings 21,
41 for disclosing a threaded cap with a display aperture, as required by claim
1, which results in a cap assembly being made of three pieces (i.e., inner and
outer housings 21, 41 as the claimed cap of the cap assembly, and indicia 62
as the claimed schedule display of the cap assembly).
Appellant further argues that Kramer’s indicia 62 is “mounted to an
external sloped surface of the inner housing [41],” and therefore, Kramer
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does not disclose “a schedule display mounted within the threaded cap,” as
claimed. However, as discussed supra, the Examiner relies on Kramer’s
inner and outer housings 21, 41 as corresponding to the claimed cap of the
cap assembly, and therefore, Kramer’s disclosure of mounting indicia 62 to
an external, sloped surface of inner housing 41 does not apprise us of
Examiner error.
Accordingly, we sustain the Examiner’s rejection of independent
claim 1. Appellant chose not to present arguments for the patentability of
claim 8 apart from the arguments presented for independent claim 1 from
which claim 8 depends. Appeal Br. 14–22. Therefore, for essentially the
same reasons as stated supra, we also sustain the Examiner’s rejection of
claim 8.
Dependent claim 2
Claim 2 depends from independent claim 1 and recites, in relevant
part, “wherein the cap, the schedule display, and the bottle are each single-
piece components.” Appeal Br. 25 (Claims App.). The Examiner finds that
“the schedule display, and the bottle are each single-piece components.”
Final Act. 5 (citing Kramer, Fig. 9). Appellant argues correctly that
Kramer’s inner and outer housings 21, 41, which are relied on supra for
disclosing the claimed cap, are two separate pieces, and therefore, the
Examiner errs by finding that Kramer discloses a cap made of a single-piece.
Appeal Br. 18. Additionally, as set forth supra, the Examiner omits the cap
entirely from the Examiner’s findings.
Accordingly, we do not sustain the Examiner’s rejection of claim 2.
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Dependent claim 3
Claim 3 depends from independent claim 1 and recites, in relevant
part, “wherein the schedule display includes one or more manual-
manipulation features that allow for manual indication advancement.”
Appeal Br. 25 (Claims App.). The Examiner finds that the “features” on
Kramer’s closure member 11 disclose this claim limitation. Final Act. 5.
Appellant argues that the Examiner fails to provide support for the
Examiner’s finding in Kramer. Notably, Appellant’s argument appears to
contradict Appellant’s argument supra that Kramer’s indicia 62 is advanced
manually, rather than automatically.
Kramer discloses that
indicia disc or means 62, conforming to the dimensions of the
inner housing 41, is removably mounted thereto and secured by
either adhesive means (not shown) or by aligning the disc 62,
having a cut-out recess 64 therein, with a projection 65 extending
upwardly from the inner housing. Such alignment secures the
indicia disc to the inner housing 41.
Kramer 6:61–8 (emphasis added). Thus, a preponderance of the evidence
supports the Examiner’s finding that Kramer’s indicia disc 62 (i.e., schedule
display) includes a manual-manipulation feature, namely, cut-out recess 64
that allows for manual removability and therefore, advancement of the
indicia disc 62 relative to inner housing 41 and therefore, the aperture of
outer housing 21 when assembled.
Accordingly, we sustain the Examiner rejection of claim 2.
Dependent claim 4
Claims 4 depends from independent claim 1 and recites, in relevant
part, “wherein the cap assembly accommodates a seal that, following filling
of the container, seals the container.” Appeal Br. 25 (Claims App.). The
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Examiner finds that the “threads” on inner housing 41 disclose this claim
limitation. Final Act. 5. Appellant argues that threading on a bottle does
not disclose a seal. Appeal Br. 20.
Kramer expressly discloses, with reference to Figure 9, that “closure
member 11 includes an outer housing 21 and an inner housing 41 having an
open bottom equipped with threads (not shown) for sealably mounting the
closure member onto threads 13 conveniently positioned near the top of the
container 12, as is known in the art.” Kramer 6:55–61 (emphasis added).
Thus, a preponderance of the evidence supports the Examiner’s finding that,
in Kramer, threads on inner housing 41 seal the cap assembly onto the
container. Notably, Kramer also discloses generally that “[t]he inner
housing has means for sealably mounting to a container.” Kramer 1:46–47
(emphasis added).
Accordingly, we sustain the Examiner’s rejection of claim 4.
Dependent claim 6
Claim 6 depends from independent claim 1 and recites, in relevant
part, “wherein the indication-display aperture is located at a position of the
cap selected from among: a rim of the cap; and a top of the cap. Appeal Br.
25–26 (Claims App.). The Examiner finds that aperture 23 is located on
Kramer’s conical portion 24 of outer housing 21 (i.e., the top of Kramer’s
cap, which is identified by the Examiner as inner and outer housings 21, 41,
as discussed supra), as depicted in Figure 9. Final Act. 5. Appellant argues,
with reference to Figures 8 and 9, that “the top of outer housing is a narrow,
flat disk-shaped surface with a central hole through which the conical shaft
of the inner housing protrudes,” and therefore, “Kramer’s closure member
11 does not teach a display aperture on either the rim or the top of a cap.”
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Appeal Br. 20–21. We are not persuaded by Appellant’s argument. Rather,
the Examiner’s interpretation of Figures 8 and 9 as depicting the aperture on
a top (as claimed) of Kramer’s outer housing 21 is reasonable. See, e.g.,
Kramer, Fig. 1 (depicting aperture 23 on a top of outer housing 21).
Accordingly, we sustain the Examiner’s rejection of claim 6.
Independent claim 15 and dependent claim 16
In addition to the limitations recited in independent claim 1,
independent claim 15 requires the bottle to have “one or more bottle biasing
features.” Appeal Br. 27 (Claims App.); see Spec. 20:19–24 (identifying,
with respect to Figure 12B, “bottle biasing features 1232-1234, that are
positioned along the bottom edge of an inner bottle wall 1236”). The
Examiner finds that Kramer’s “abutment means 25” discloses this claim
limitation. Final Act. 6. Appellant argues correctly that Kramer’s abutment
means 25 is “a feature of Kramer’s outer housing [41], and not Kramer’s
bottle.” Appeal Br. 21 (quoting Kramer 7:11–12 (“[a]butment means 25 are
disposed upon the vertical cylindrical wall of the inner housing 41.”)).
Accordingly, we do not sustain the Examiner’s rejection of
independent claim 15 and claim 16 depending therefrom.
Rejection III
Dependent claim 5
Claim 5, which depends from independent claim 1, requires the
threaded neck of the bottle to have one or more threads, wherein each thread
has a thread pitch of less than 2, 2.5, 5, or 10 degrees.9 Appeal Br. 25
(Claims App.). Although Kramer discloses that container 12 has threads 13,

9 Notably, a thread pitch of less than 10 degrees would appear to encompass
the recited thread pitches of less than 2, 2.5, and 5 degrees.
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“as is known in the art” (Kramer 6:56–61), the Examiner finds that Kramer
fails to disclose the specific thread pitches claimed. Final Act. 6–7. The
Examiner reasons that it would have been obvious to modify threads 13 of
Kramer’s container 12 “to accommodate the desired thread pitch of the
closure allowing the closure to close effectively.” Id. at 7.
In addition to the arguments presented for independent claim 1 supra,
which we found unpersuasive as discussed supra, Appellant contends that
the Examiner’s reasoning is “meaningless,” because “[t]hose familiar with
mechanical devices will understand that changing the thread pitch in a
device that depends on the interoperation of threaded parts can well render
the device unworkable” and that “changing the thread pitch does not
generally impact whether or not a threaded cap can be screwed onto a bottle
with complimentary threading.” Appeal Br. 22–23.
We are persuaded by Appellant’s argument. The Examiner finds that
Kramer does not disclose the recited thread pitches for the threaded neck of
a bottle. Final Act. 6–7. Nevertheless, the Examiner concludes,
it would have been obvious to one of ordinary skill within the
art, at the time the invention was made, to modify the container
by employing the thread pitch at such a degree, in order to
accommodate the desired thread pitch of the closure allowing
the closure to close effectively.

Id. at 7. We not find the Examiner’s rationale for modifying the threaded
neck of a bottle to have a rational underpinning. Instead, the Examiner’s
conclusory statement is akin to simply asserting that a skilled artisan could
have selected the recited thread pitches to allow a closure to close
effectively. This is not enough. “[O]bviousness concerns whether a skilled
artisan not only could have made but would have been motivated to make the
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combinations or modifications of prior art to arrive at the claimed
invention.” Belden Inc. v. Berk–Tek LLC, 805 F.3d 1064, 1073 (Fed. Cir.
2015). The Examiner offers no evidence to show the recited thread pitches
were within a known range of pitches a skilled artisan would have used to
facilitate securing a cap to a container. Nor is there any evidence that the
available thread pitches is limited when seeking to secure a closure to a
container effectively. The Examiner also does not offer any evidence or
technical reasoning to suggest the recited thread pitches would have been
recognized by skilled artisans to be an effective option for securing a closure
to a container. The Examiner’s obviousness conclusion is deficient because
there is no basis supported by fact or technical reasoning for why a skilled
artisan would have modified the threaded neck of Kramer’s bottle in the
manner claimed.
Accordingly, we do not sustain the rejection of claim 5.
Dependent claim 7
Claim 7, which depends from independent claim 1, recites, in relevant
part, “wherein the number of indications is equal to 7 multiplied by n, where
n is an integer equal to, or greater than, 1.” Appeal Br. 26 (Claims App.).
The Examiner finds that Kramer does not disclose this claim limitation, but
reasons that it would have been obvious to modify Kramer’s indicia 62 to
have a number of indications is equal to 7 multiplied by n, where n is an
integer equal to, or greater than, 1, as claimed, “to accommodate a user’s
need for a certain number of indications.” Final Act. 7.
In addition to the arguments presented for independent claim 1 supra,
which we found unpersuasive as discussed supra, Appellant contends that
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the Examiner’s reasoning is not supported by any rational underpinning.
Appeal Br. 23.
Kramer discloses that the indicia is to assist “elderly patients” with “a
therapeutic regimen” (Kramer 1:21–27), wherein the disclosed “reminder
cap” (id. 1:31) has “different indicia disposed upon the outer housing” such
that “apertures represent different regimens or schedules” (id. 7:53–56).
Figures 4, 5 and 11–13 of Kramer disclose different indicia for treatment
regimens, which are based on the day of the week (i.e., with a number of
indications equal to 7 multiplied by n=1), as well as daily, hourly, and other
bases for dosing. As determined by the Examiner, Kramer fails to disclose
dosing based on a bi-weekly regimen (i.e., n=2), or in other words, based on
a regimen of several weeks. The Examiner reasons, in essence, that such a
selection of indicia would have been obvious to accommodate an elderly
patient’s need for a bi-weekly therapeutic regimen, and we are not persuaded
by Appellant’s conclusory argument that such reasoning lacks rational
underpinning. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (“A
person of ordinary skill is also a person of ordinary creativity, not an
automaton”).
Accordingly, we sustain the Examiner’s rejection of claim 7.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 112(b) Indefiniteness 1–20
1–4, 6, 8,
15, 16
102(a)(1) Kramer 1, 3, 4, 6,
8
2, 15, 16
5, 7 103 Kramer 7 5
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Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
Overall
Outcome
1, 3, 4,
6–8
2, 5, 9–20
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED IN PART

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DISSENTING-IN-PART OPINION

LANEY, Adminstrative Patent Judge

I agree with the decision to not sustain the rejection of claims 1–20
under 35 U.S.C. § 112(b) as indefinite. I respectfully disagree, however,
with my colleagues’ decision to affirm the Examiner’s anticipation rejection
of claims 1–4, 6, 8, 15, and 16.
Regarding the Examiner’s anticipation rejection, the Examiner failed
to provide sufficient evidence to establish that Kramer discloses, “a schedule
display mounted within the threaded cap that . . . interoperates with the
threaded cap and bottle to advance the display aperture to a next indication
of the schedule display when the cap assembly is screwed onto the bottle,”
as independent claims 1 and 15 recite. Reaching a contrary conclusion, in
my opinion, necessarily relies on a construction of the above limitation that
does not reasonably reflect the plain language and the description of the
invention in the Specification.
We “must determine the scope of the claims by giving them their
broadest reasonable construction in light of the specification as they would
be interpreted by one of ordinary skill in the art.” Tricascular, Inc. v.
Samuels, 812 F.3d 1056, 1061–62 (Fed. Cir. 2016). This “broadest-
construction rubric . . . does not give [us] an unfettered license to interpret
claims to embrace anything remotely related to the claimed invention.” In re
Suitco Surface, Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010). Interpreting the
words of a claim divorced from the context in which those words appear “is
simply not ‘reasonable’” because “it is the use of the words in the context of
the written description and customarily by those of skill in the relevant art
that accurately reflects both the ‘ordinary’ and customary’ meaning of the
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terms in the claims.” Tricascular, Inc., 812 F.3d at 1062. It would likewise
not be reasonable to limit the broadest construction by including unwritten
limitations simply because they appear in the written description of an
embodiment of the invention. In re Zletz, 893 F.2d 319, 321–22 (Fed. Cir.
1989). Thus, neither strictly limiting the scope of the claims to the
embodiments disclosed in the specification nor divorcing the claim language
from the specification is likely to capture accurately the broadest reasonable
scope of the actual invention. Phillips v. AWH Corp., 415 F.3d 1303, 1323–
24 (Fed. Cir. 2005) (en banc).
In this case, from the claim language itself––“a schedule display
mounted within the threaded cap that . . . interoperates with the threaded cap
and bottle to advance the display aperture to a next indication of the
schedule display when the cap assembly is screwed onto the bottle”––it is
clear that the schedule display works with the threaded cap and bottle to
move the display aperture of the threaded cap forward along the schedule
display to where the next indication is located when the cap assembly is
screwed onto the bottle.10 This understanding is also consistent with the
description of the invention in the Specification.
The Specification states, “[f]eatures included in the cap and the
schedule display interoperate to ensure that the displayed indication is
advanced to a next indication when the cap is . . . threaded onto the bottle.”

10 The dictionary definition of “interoperates” is “to operate together” and
the definition of “operate” is “to perform a function” and “to produce an
appropriate effect.” See Interoperates Definition, Merriam-Webster.com,
http://www.merriam-webster.com/dictionary/interoperates (last visited on
March 31, 2020); see also, Operate Definition, Merriam-Webster.com,
http://www.merriam-webster.com/dictionary/interoperates (last visited on
March 31, 2020). See Exhibit A.
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Spec. 2:26–28; see also id. at 4:12–15 (“Interior features of the cap and
schedule display interoperate with one another and with bottle features to
ensure that the displayed indication is correctly advanced to a next indication
within a circular sequence of schedule-display indications when the cap is
unscrewed and removed from the bottle and then screwed back on the
bottle.”). Referring to Figures 6A–I, the Specification describes how the
display schedule interoperates with the threaded cap and bottle by
illustrating a step-by-step interaction of these components as the cap is
screwed onto, and removed from, the bottle. Id. at 3:13–15. Notably, the
Specification shows different surfaces of the display schedule engaging
corresponding parts on the threaded cap and bottle, respectively. Id. at 11:1–
14:29, Fig. 6A–F. For example, element 228 of the display schedule
engages element 230 of the bottle (collectively referred to as 610) and
element 204 of the display schedule engages element 202 of the threaded
cap (collectively referred to as 612). Id. Both of these engagements
cooperate to move the aperture in the threaded cap relative to the display
schedule a distance needed to display the next indication on the display
schedule through the cap’s aperture. Id.
I do not find the plain claim language or the Specification to
reasonably support broadening the interpretation to “‘advancing the display
aperture to a next indication of the schedule display when the cap assembly
is screwed onto the bottle’ based on interoperability of the ‘schedule display
. . . with the threaded cap and bottle’” (supra 8, emphasis added). This
interpretation is unreasonably broad, in my opinion, because it adds an
unwarranted degree of separation.
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The recitation, “a schedule display . . . interoperates with the threaded
cap and bottle to advance the display aperture,” connotes a direct link
between the advancement of the display aperture in the threaded cap and the
parts necessary (i.e., schedule display, threaded cap, and bottle) to control
that advancement. The Specification also only discloses embodiments in
which the schedule display, threaded cap, and bottle have a direct and active
role in controlling the advancement of the aperture in the threaded cap, when
the cap assembly is screwed onto the bottle. Spec. 11:1–14:29, Fig. 6A–F.
The majority’s inclusion of “based on” in its interpretation only requires
some association between the outcome as a whole (i.e., display aperture is
advanced to a next indication, when the cap assembly is screwed onto a
bottle) and the interoperability of the schedule display, threaded cap, and
bottle. In other words, under the majority’s interpretation, the schedule
display, threaded cap, and bottle do not each have to play a specific part in
controlling the advancement of the display aperture itself. This is an
unreasonably broad interpretation, in my opinion.
The Examiner finds Kramer to disclose a cap assembly that includes
the bottle, threaded cap, and display schedule recited in claims 1 and 15.
Final Act. 5. For the bottle, the Examiner identifies element 13 shown in
Figure 8 of Kramer. Id. For the threaded cap with a display aperture, the
Examiner identifies the inner and outer housings, 41 and 21, of closure
member 11 shown in Figure 9 of Kramer. Id. For the display schedule, the
Examiner identifies the indicia disc 62 shown in Figures 8 and 9. Id.
In my opinion, however, a preponderance of the evidence does not
support the Examiner’s finding that indicia disc 62 of Kramer’s cap
assembly discloses the schedule display recited by independent claims 1 and
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15. Although I agree Kramer shows the indicia disc 62 to be mounted
within the threaded cap and shows the disc to include a circularly ordered set
of indications, there is no evidence that disc 62 works with the threaded cap
(i.e., the combination of elements 21 and 41) and bottle (i.e, element 13) to
move the display aperture of the threaded cap forward along the schedule
display to where the next indication is located when the cap assembly is
screwed onto the bottle.
To the contrary, Kramer intends for disc 62 to remain fixed and
disengaged from the interactions that moves the aperture in the threaded cap
forward to the next indication on disc 62. Kramer teaches that disc 62 is
configured “to be affixed in a relatively stationary manner to the inner
housing 41.” Kramer 4:15–17, 4:28–46, 6:61–68, 7:60–63, 9:29–32, 10:33–
36. Kramer also teaches configuring the inner and outer housings, 21 and
41, to have a separation between them that is “sufficient to provide space for
the disc 62 to prevent the disc 62 from interfering with the relative rotation
of the inner and outer housing 41 and 21, respectively.” Id. at 4:47–53,
6:17–22, 7:63–65, 9:27–29, 10:30–33. Regarding the movement of the
aperture in the cap forward along disc 62, Kramer teaches that this occurs
because the threaded cap works with the bottle, while disc 62 remains fixed
and out of the way. Specifically, Kramer teaches, “[w]hen the closure
member 11 is rotatably mounted to the container 12, the wedge-shaped rib
25 on the outer housing 21 engages a predetermined triangular groove 42 in
the inner housing 41 to indicate the desired indicia and that the closure
member 11 is secured to the container 12.” Kramer 7:26–44. Although disc
62 provides the symbols that the aperture exposes, the separation between
the threaded cap’s inner and outer housings, which creates the space
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sufficient to prevent disc 62 from interfering with the cap’s movement, also
completely separates the fixedly secured disc 62 from the operations that
cause the aperture to move. Thus, Kramer does not disclose a schedule
display that interoperates with the threaded cap and bottle to advance the
display aperture to a next indication of the schedule display when the cap
assembly is screwed onto the bottle.
Therefore, because there is insufficient evidence to show that Kramer
discloses each of the recited elements of independent claims 1 and 15, I find
the Examiner anticipation rejection of these claims, as well as the claims
depending therefrom, to be error.
Therefore, for all of the foregoing reasons, I must respectfully dissent.