2021002336 (P.T.A.B. Dec. 1, 2021)

Michael Moeller

Patent Trials and Appeals BoardDec 1, 2021

2021002336 (P.T.A.B. Dec. 1, 2021)

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. 15/619,824 06/12/2017 Michael E. Moeller 5646-00006 6954 26753 7590 12/01/2021 ANDRUS INTELLECTUAL PROPERTY LAW, LLP 790 NORTH WATER STREET SUITE 2200 MILWAUKEE, WI 53202 EXAMINER POON, ROBERT ART UNIT PAPER NUMBER 3735 NOTIFICATION DATE DELIVERY MODE 12/01/2021 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): patentdocketing@andruslaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHAEL E. MOELLER Appeal 2021-002336 Application 15/619,824 Technology Center 3700 Before EDWARD A. BROWN, CHARLES N. GREENHUT, and MICHAEL J. FITZPATRICK, Administrative Patent Judges. GREENHUT, 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 1–6 and 13. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Michael E. Moeller. Appeal Br. 1. Appeal 2021-002336 Application 15/619,824 2 CLAIMED SUBJECT MATTER The claims are directed to a packaging and shipping system for a dry charged battery. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A packaging, shipping and storage system for a dry charged battery, comprising: a shipping crate including a lower section and a cover, wherein the lower section defines an open interior; a dry charged battery shell positioned within the open interior of the lower section, the dry charged battery shell having a top, a bottom, a pair of sidewalls and a plurality of battery cells each having a cell volume; a plurality of separate and independent electrolyte bottles each sized to receive a volume of liquid equal to the cell volume, wherein the plurality of electrolyte bottles are contained within the open interior of the lower section and positioned adjacent the sidewalls of the battery shell within the open interior of the lower section. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Kalen US 3,483,041 Dec. 9, 1969 Bapst US 5,911,323 June 15, 1999 Gaffney US 2001/0052479 A1 Dec. 20, 2001 Martinez US 2007/0251858 A1 Nov. 1, 2007 Hasegawa US 2015/0118125 A1 Apr. 30, 2015 Appeal 2021-002336 Application 15/619,824 3 REJECTIONS Claims 1 and 22 are rejected under 35 U.S.C. § 103 as being unpatentable over Kalen and Hasegawa. Final Act. 2. Claims 3 and 5 are rejected under 35 U.S.C. § 103 as being unpatentable over Kalen, Hasegawa, and Martinez. Final Act. 3. Claims 4 and 13 are rejected under 35 U.S.C. § 103 as being unpatentable over Kalen, Hasegawa, and Bapst. Final Act. 4. Claim 6 is rejected under 35 U.S.C. § 103 as being unpatentable over Kalen, Hasegawa, and Gaffney. Final Act. 5. OPINION The Examiner relies on Kalen for disclosing the basic subject matter of independent claims 1 and 13. Final Act. 2, 4. The Examiner relies on Hasegawa as teaching separate and distinct bottle containers. Final Act. 3, 5. For purposes of rejecting claim 13, the Examiner additionally relies on Bapst for further placing said bottles within separate boxes. Final Act. 5. The Examiner reasons that it would have been obvious to incorporate Hasegawa’s teaching of using separate and distinct containers to accommodate Kalen’s electrolyte “to facilitate and control dispensing of the container contents since it has been held that making two parts separable would have been obvious to one of ordinary skill in the art.” Final Act. 3, 5 (citing In re Dulberg, 289 F.2d 522, 523 (CCPA 1961)). It is well-settled that “there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” 2 The Examiner appears to have inadvertently included claim 13 in this rejection. Final Act. 2. However, claim 13 is never mentioned in the Examiner’s discussion of the grounds for rejection. Appeal 2021-002336 Application 15/619,824 4 In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval in KSR Int’l. v. Teleflex, 550 U.S. 398, 418 (2007). Here, Appellant argues the Examiner’s underpinning is flawed because Kalen teaches benefits associated having a single integrated multi-cell container 5. Appeal Br. 9– 11. Thus, Appellant contends, Kalen would either lead away from doing what the Examiner proposes or the Examiner’s proposal would destroy the advantages of Kalen’s container, and either of these is evidence weighing against obviousness. Id; see, e.g., MPEP § 2145(X)(D) and examples at MPEP § 2143. Although the Examiner articulates that the proposed modification would have been obvious “in order to facilitate and control dispensing of the fluid within each Kalen compartment,” (Ans. 7), the Examiner does not explain, and it is not apparent from the record before us, why separating Kalen’s cells as proposed would have any influence on the ability to control dispensing of the fluid within each Kalen cell. The cells would seem to be dispensed with the puncturing key 6 opening wells 15 to cooperate with battery openings 16 regardless of their independence from each other. Kalen col. 2–3. For the foregoing reasons, on the evidentiary record presently before us, the Examiner has not demonstrated that the evidence of obviousness outweighs the evidence against, as is necessary to reject claims before the PTO. In re Warner 379 F.2d 1011, 1016 (CCPA 1967); MPEP § 2142. CONCLUSION The Examiner’s rejections are REVERSED. Appeal 2021-002336 Application 15/619,824 5 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2 103 Kalen, Hasegawa 1, 2 3, 5 103 Kalen, Hasegawa, Martinez 3, 5 4, 13 103 Kalen, Hasegawa, Bapst 4, 13 6 103 Kalen, Hasegawa, Gaffney 6 Overall Outcome 1–6, 13 REVERSED