KHS Corpoplast GmbH

Patent Trials and Appeals Board

Jul 1, 2020

2019005085 (P.T.A.B. Jul. 1, 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.
14/911,676 02/11/2016 Frank LEWIN 11616-1023 6732
20311 7590 07/01/2020
LUCAS & MERCANTI, LLP
30 BROAD STREET
21st FLOOR
NEW YORK, NY 10004
EXAMINER
LE, NINH V
ART UNIT PAPER NUMBER
1744
NOTIFICATION DATE DELIVERY MODE
07/01/2020 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):
info@lmiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANK LEWIN, THOMAS HEROLD, JAN FABIAN MEYER,
MARTIN GERHARDS, DIETER KLATT, and ROLF BAUMGARTE
Appeal 2019–005085
Application 14/911,676
Technology Center 1700

Before BEVERLY A. FRANKLIN, MONTÉ T. SQUIRE, and JANE E.
INGLESE, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 36–42 and 44–48. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as KHS Corpoplast
GmbH. Appeal Br. 2.
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Application 14/911,676

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CLAIMED SUBJECT MATTER
Claim 36 is illustrative of Appellant’s subject matter on appeal
and is set forth below:
36. A device for manufacturing blow-molded containers
which are sterile in at least some areas, that device
comprising: a heating section for temperature controlling
preforms of a thermoplastic material; at least one
blowing station for blow-molding the preforms to form
containers, wherein the blowing station has a stretching
rod for stretching the preform and a blowing nozzle for
impinging the preform with a pressurized fluid; and a
sterilization installation disposed in the blowing station,
wherein the sterilization installation has at least one
radiation source that emits a sterilizing radiation onto the
stretching rod and/or onto the blowing nozzle, wherein
the radiation source is arranged outside of a blow mold
and is disposed so as to be positionally fixed in relation
to the blowing station such that the radiation source emits
radiation onto a side of the blowing nozzle that faces the
preform and/or onto a mouth area of the preform.

REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Dundas US 2002/0171179 A1 Nov. 21, 2002
Winzinger US 2011/0037187 A1 Feb. 17, 2011
Voth US 2012/0091636 A1 Apr. 19, 2012
Krueger (as translated) EP 2 138 298 A2 Dec. 30, 2009
Pagliarini WO 2011/154868 A2 Dec. 15, 2011

REJECTIONS
1. Claims 36–42 and 44–46 are rejected under 35 U.S.C. § 103 as
being unpatentable over Winzinger in view of Krueger or Voth or Pagliarini.
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2. Claims 47 and 48 are rejected under 35 U.S.C. § 103 as being
unpatentable over Winzinger in view of Krueger or Voth or Pagliarini, and
in further view of Dundas.
OPINION
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”). After considering the
argued claims and each of Appellant’s arguments, we are persuaded of
reversible error in the appealed rejections.
The instant application is directed to a device for manufacturing
blow-molded containers 2 (see page 13, line 20 of the Specification; Figure
2) which are sterile in at least some areas. The device comprises a heating
section 24 (see page 16, ll. 1–6 of the Specification; Figure 3) for
temperature controlling preforms 1 of a thermoplastic material (see page 1,
ll. 6–7 of the Specification; Figure 2). At least one blowing station 3 (see
page 13, ll. 20–22 of the Specification; Figure 3) is provided for blow-
molding the preforms 1 to form containers 2 (see Figure 2). The blowing
station 3 has a stretching rod 11 for stretching the preform 1 (see page 14,
line 15 of the Specification; Figure 2) and a blowing nozzle 10 (Figure 1) for
impinging the preform 1 with a pressurized fluid (see page 14, lines 1–3 of
the Specification). A sterilization installation is disposed in the blowing
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station 3 (see page 19, ll. 1–3 of the Specification). The sterilization
installation has at least one radiation source 51, 60, 73 (Figure 6) that emits
sterilizing radiation 52, 61, 74 (Figure 5) onto the stretching rod 11 (see page
19, ll. 13–15 of the Specification; Figure 5) and/or onto the blowing nozzle
10 (see page 22, ll. 15–13 of the Specification; Figure 6). The radiation
source 51, 60, 73 is arranged outside of a blow mold 4 ( Fig. 6) and is
disposed so as to be positionally fixed in relation to the blowing station 3
such that the radiation source 51, 60, 73 emits radiation 52, 61, 74 onto a
side of the blowing nozzle 10 that faces the preform 1 (see page 23,
l. 20–page 24, l. 2; Figure 6) and/or onto a mouth area 21 of the preform 1
(see Figures 3 and 6, page 22, ll. 17–22 and page 24, ll. 5–7).
With regard to Rejection 1, we refer to the Examiner’s statement of
the rejection made on pages 4–10 of the Answer. Therein, the Examiner
recognizes that Winzinger is silent regarding the recited elements of claim
36 pertaining to the arrangement of a sterilization installation disposed in the
blowing station, wherein the sterilization installation has at least one
radiation source that emits a sterilizing radiation onto the stretching rod
and/or onto the blowing nozzle, wherein the radiation source is
arranged outside of a blow mold and is disposed so as to be positionally
fixed in relation to the blowing station such that the radiation source emits
radiation onto a side of the blowing nozzle that faces the preform and/or
onto a mouth area of the preform as recited in claim 36. Ans. 7. Appellant’s
Figure 5 depicts the sterilization installation.
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The Examiner proposes to modify Winzinger by introducing a
sterilization medium comprising a radiation source into the preform based
upon the teachings found in Krueger, Voth, and Pagliarini by incorporating
at least one additional supply line to be connected to the valve block 46 of
Winzinger. Ans. 7–8.
Appellant argues, inter alia, that the Examiner’s rejection is based
upon the Examiner’s misunderstanding of the technology involved. Appeal
Br. 14–15. Appellant argues that the Examiner seems to believe that
radiation can be conducted over a line. Appeal Br. 15. Appellant argues
that, contrary to a gas or a fluid (which is involved in Winzinger), radiation
cannot be simply conducted over a supply line connected to the valve block
46 of Winzinger. Id. Appellant submits that UV radiation must instead be
conducted over a specifically conducted wave carrier, and such a wave
carrier is in no way comparable with the lines for conducting fluids or gas of
Winzinger. Id.
Appellant also argues that it is unclear how UV radiation would be
supplied using the valve block 46, since valve block 46 (as shown in Figure
1 of Winzinger) is arranged far above the blowing nozzle or the stretching
rod and is thus not in a position to provide sterilization radiation that
contacts the blowing nozzle or the stretching rod as required by claim 36.
We are persuaded by the aforementioned line of argument. Notably,
in response (Ans. 18–19), the Examiner does not adequately address this line
of argument. On pages 18–19 of the Answer, the Examiner merely reiterates
the position that the combination of teachings suggests incorporating at
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least one additional supply line to supply radiation to valve block (46) of
Winzinger, and that Appellant has failed to provide any evidence showing
that radiation cannot be supplied over the at least one additional supply line
as suggested by the combination. However, we note that the Examiner has
the initial burden of establishing a prima facie case of obviousness based on
an inherent or explicit disclosure of the claimed subject matter under 35
U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) (“[T]he
examiner bears the initial burden, on review of the prior art or on any other
ground, of presenting a prima facie case of unpatentability.”). Also, no
response is made regarding Appellant’s point that it is unclear how UV
radiation would be supplied using the valve block 46 in order to
provide sterilization radiation that contacts the blowing nozzle or
the stretching rod as required by claim 36.
Also, the Examiner responds and states that claim 36 does not require
a wave carrier (Ans. 19), but this misses the point being made by Appellant
which is that the proposed modification is not doable and not operable using
the valve block (46) of Winzinger. Appellant reiterates this line of argument
in the Reply Brief. Therein, Appellant states (Reply Br. 3–4) that the
Examiner’s position does not take into consideration what a person
of ordinary skill in the art understands from the term “valve block”.
Appellant explains that a person skilled in the art understands a valve block
controls the flow of fluids by way of a plurality of valves arranged in a
single component, i.e. a valve block (as taught in Winzinger). Appellant
submits that a person of ordinary skill in the art would not find it obvious to
conduct radiation to the valve block of Winzinger since such a conventional
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valve block is not capable of handling radiation. Reply Br. 3. Appellant
therefore submits that the Examiner’s proposal to modify Winzinger in this
manner is flawed. We agree. The Examiner has not adequately resolved
this line of argument in the record and therefore we reverse Rejection 1. We
also reverse Rejection 2 for the same reasons.
CONCLUSION
We reverse the Examiner’s decision.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Reversed Affirmed
36–42,
44–46
103 Winzinger,
Krueger, Voth,
Pagliarini
36–42,
44–46

47, 48 103 Winzinger,
Krueger, Voth,
Pagliarini, Dundas

47, 48
Overall
Outcome
36–42,
44–48

REVERSED