Rehrig Pacific Company

Patent Trials and Appeals Board

May 12, 2021

2020005931 (P.T.A.B. May. 12, 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.
14/710,124 05/12/2015 William P. Apps 14538 PUS1;
67080-640PUS1
2504
26096 7590 05/12/2021
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
EXAMINER
PERREAULT, ANDREW D
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
05/12/2021 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):
cgolaw@yahoo.com
ptodocket@cgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte WILLIAM P. APPS and SUZANNE WHITFIELD CLARK
____________

Appeal 2020-005931
Application 14/710,124
Technology Center 3700
____________
Before JOHN C. KERINS, WILLIAM A. CAPP, and LISA M. GUIJT,
Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final
rejection of claims 1–6, 8–19, and 25.2 We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies Rehrig Pacific Company as the applicant and
real party in interest. Appeal Br. 1.
2 The cover sheet to the Examiner’s rejection indicates that claims 20–24 are
pending and rejected. Final Act. However, no ground of rejection appears
therein, no art is cited against these claims, and neither the Examiner nor
Appellant mentions these claims in any of their briefs. See generally,
Appeal Br., Ans., Reply Br. We will treat these claims as outside of the
scope of the instant appeal.
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2

THE INVENTION
Appellant’s invention relates to crates for carrying beverage
containers. Spec. ¶ 1. Claim 1, reproduced below with paragraph
indentation added, is illustrative of the subject matter on appeal.
1. A nestable crate comprising:
a base having opposed side edges and opposed end edges,
the base having an array of bottle capture areas on an underside
thereof including an odd number of bottle capture areas
adjacent each end edge, wherein the bottle capture areas are at
least partially circumscribed by capture ribs and wherein the
capture ribs do not have any breaks along a periphery of the
base;
a plurality of side columns extending upward from each of
the side edges of the base;
at least one end column extending upward from one of the
end edges of the base; and
an upper band portion at an upper end of the at least one
end column, a handle formed in the upper band portion above
the at least one end column.

THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Kessler US 2,788,933 Apr. 16, 1957
Stahl US 2010/0230318 A1 Sept. 16, 2010
Meers US 2014/0110303 A1 Apr. 24, 2014
The following rejections are before us for review:
1. Claim 25 is rejected under 35 U.S.C. § 112(a) for failure to comply
with the written description requirement.
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2. Claims 1–6, 15–17, and 19 are rejected as being unpatentable over
Meers or, alternatively, over Meers and Stahl.
3. Claim 8–14, and 25 are rejected under 35 U.S.C. § 103, as being
unpatentable over Meers and Kessler.
4. Claim 18 is rejected under 35 U.S.C. § 103 over Meers, Stahl, and
Kessler.
5. Claims 20–24 are listed on the cover page of the Final Action as
pending and rejected. Final Act. However, no ground of rejection is
advanced and no prior art references are cited against these claims. Id.
OPINION
Written Description – Claim 25
During prosecution, Appellant added a new claim, claim 25, which
includes the following limitation: “a handle opening formed in the upper
band portion above each of the first end columns, but not over each of the
second end columns.” Claims App. The Examiner considers the negative
limitation (“but not over . . .”) to be impermissible new matter that is not
supported by Appellant’s original disclosure. Final Act. 2–3. Appellant
directs our attention to the drawings from the original disclosure as
providing written description support. Appeal Br. 14–15.
The written description requirement of 35 U.S.C. § 112 requires that
the disclosure of the application relied upon reasonably convey that the
inventor had possession of the claimed subject matter as of the filing date.
Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010)
(en banc). The written description requirement is met when the disclosure
“allow[s] one skilled in the art to visualize or recognize the identity of the
subject matter purportedly described.” Enzo Biochem, Inc. v. Gen-Probe
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Inc., 323 F.3d 956, 968 (Fed. Cir. 2002). The level of detail required to
satisfy the written description requirement varies depending on the nature
and scope of the claims and on the complexity and predictability of the
relevant technology. Ariad, 598 F.3d at 1351. Drawings alone may be
sufficient to provide the required written description of the invention
required by § 112, first paragraph. Vas-Cath, Inc. v. Mahurkar, 935
F.2d 1555, 1564 (Fed. Cir. 1991).
We have reviewed Appellant’s drawings. Figure 1 depicts a
perspective view of the crate. The perspective view allows us to view the
interior side of end wall 16 in the upper right portion of the drawing. Id.
End wall 16 features handle 30, first column 26, and second column 28. Id.
First column 26 is disposed entirely beneath handle 30. Id. Second
column 28 appears to the right of handle 30 and runs essentially the full
height from top to bottom of end wall 16. Id.
Figure 1 demonstrates possession of the invention. We do not sustain
the Examiner’s Section 112(a) written description rejection of claim 25.
Unpatentability of Claims 1–6, 15–17, and 19
over Meers, or alternatively, over Meers and Stahl
Given the similarity of issues and simplicity of the technology, we
deem it expedient to consider these two alternative grounds of rejection
together.
Claim 1
The Examiner finds that Meers discloses the invention substantially as
claimed, except for the “odd number” limitation. Final Act. 3.
In a first ground of rejection, the Examiner finds that it would have
been obvious to modify Meers so that it could accommodate an array of
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bottles that had an odd number of bottles at each end edge. Id. at 3–4.
According to the Examiner, a person of ordinary skill in the art would have
done this as a matter of optimizing a result effective variable. Id. at 4.
In a second ground of rejection, the Examiner finds that Stahl
discloses a crate with a 3x5 bottle array. Id. at 6. The Examiner concludes
that it would have been obvious to a person of ordinary skill in the art at the
time the invention was made to modify Meers to have a 3x5 array as taught
by Stahl. Id. According to the Examiner, a person of ordinary skill in the art
would have done this to hold a desired number of beverage containers. Id.
Meers is directed to a stackable, low depth beverage crate. Meers
Abstract. William Apps is a co-inventor of both Meers and the instant
application. Meers, page 1; Apps Affidavit. A review of the respective
figures of Meers and the instant application reveals that the two crates
disclosed therein share many features in common, such as the side columns,
the contours of the upper band, and the contoured shape of the handles.
Compare Meers Figs. 1–10; Instant Application Figs. 1–19. Meers’ crate
holds 8 two-liter bottles in a 2x4 array. Meers ¶ 18, Figs. 1, 7, 10.
Stahl is directed to a beverage crate. Stahl Abstract. Stahl’s crate
accommodates 15 one-liter bottles in a 3x5 array. Stahl ¶ 31, Figs. 1–4.
Appellant argues that Meers is for 2-liter bottles. Appeal Br. 16.
According to Appellant, modifying Meers to hold an array of 15 bottles
would make a loaded crate too heavy to carry. Id. at 17.
Appellant’s arguments directed to each of the grounds are not
persuasive. The background section of Appellant’s Specification admits that
beverage containers come in a wide variety of sizes. Spec. ¶ 1. Appellant
admits that 16 to 24 ounce bottles are carried in crates that feature a 4x6
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array. Id. Appellant further admits that it was known, in the prior art, to
provide crates with an odd number of bottles (e.g., three bottles) along each
end wall. Id. Moreover, Appellant admits that this is “typically done” with
bottles that range in size from 28 ounces to 1.25 liters, “or larger.” Id. ¶ 2.
Beverage suppliers have been crating and shipping beverage
containers for decades. With respect to size dimensions, no more than
ordinary skill is required to figure out that a planform area of specified
length and width can accommodate a relatively larger array of smaller
bottles or a relatively smaller array of larger bottles. Appellant concedes
that 4x6 arrays are known. Spec. ¶ 2. Stahl discloses that 3x5 arrays are
known. Stahl Figs. 1–4. Meers discloses that 2x4 arrays are known. Meers
Fig. 10.
Appellant’s argument that a 3x5 array of 2-liter bottles is too heavy to
carry is not persuasive. Claim 1 is not limited to any particular bottle size.
Claims App. The invention of claim 1 is nothing more than a predictable
variation of Meers that includes an obvious modification to accommodate a
greater number of smaller beverage containers. It is well settled that when a
work, such as Meers, is available in one field of endeavor, design incentives
and other market forces can prompt variations of it and, if a person of
ordinary skill can implement a predictable variation, Section 103 likely bars
its patentability. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007).
Here, Appellant admits that it was known, in the prior art, to provide
beverage crates that accommodate bottles in a variety of arrays, including
arrays with an odd number of bottles along each end wall, depending on the
size of the bottles. Spec. ¶ 2.
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Next, Appellant argues that a person of ordinary skill in the art would
not modify Meers to accommodate an array of bottles with an odd number of
bottles along each end wall. Appeal Br. 17. According to Appellant, such a
modification would cause problems with the location and/or configuration of
the handle. Id. Appellant essentially argues that the only solution that
would be apparent to a person of ordinary skill in the art would be to “move
the handle outward.” Id. Appellant argues that such would have the
undesired consequence of increasing the length and width of the crate to
permit cross-stacking. Id.
Appellant’s argument is not persuasive. Meers teaches that it was
known to place a crate handle in an upper band portion above an end
column. The 2x4 array of Meers features a single end column. Meers
Fig. 1. A 3x5 array modification of Meers, as proposed by the Examiner’s
rejection,3 would feature two end columns. Appellant’s argument about
enlarging the length and width of the crate to accommodate a handle is a
straw man that is predicated on the unfounded assumption that a person of
ordinary skill in the art would only consider disposing a handle in the center
of the end wall. As discussed in more detail below with respect to the
rejection of claims 8 and 18, it was known in the prior art to produce
beverage cartons and crates with offset handles.
The Examiner’s findings of fact are supported by a preponderance of
the evidence and the Examiner’s legal conclusion of unpatentability is well-

3 The Examiner’s rejection contemplates odd number arrays with either 1
or 3 bottles along the end edge. Final Act. 3–4. We focus our decision on
the proposed array with 3 bottles along the end edge. In that regard, we do
not address Appellant’s numerous arguments directed to the proposed 1x
array.
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founded. In view thereof, we sustain each of the Examiner’s two grounds of
rejection of claim 1.
Claim 15
Claim 15 is an independent claim that is substantially similar in scope
to claim 1 except that it recites additional limitations directed to nesting and
cross-stacking. Claims App. In traversing the rejection, Appellant argues
that getting all of the claimed features into the same crate “is not easy and
not obvious” for the same reasons offered in connection with the rejection of
claim 1. Appeal Br. 18. Appellant’s claim 1 arguments are no more
persuasive with respect to claim 15 than they were with respect to claim 1.
We sustain each of the Examiner’s two grounds of rejection of
claim 15.
Claim 16
Claim 16 depends from claim 15 and adds the limitation: “wherein
the crate is cross-stacked on the identical crate loaded with bottles, with
bottle caps of the bottles fully captured by the bottle capture areas of the
crate.” Claims App. The Examiner finds that Meers is capable of being
cross stacked. Final Act. 4.
Appellant does not challenge the Examiner’s finding that Meers is
capable of being stacked when loaded with bottles and is capable of being
cross-stacked. Appeal Br. 18. Appellant merely argues in a vague and
conclusory manner that “it is not obvious to make this all work in the same
crate.” Id. Appellant does not articulate what is meant by “all this.” Id.
In submitting an Appeal Brief, an Appellant is expected, indeed
required, to “explain why the examiner erred as to each ground of rejection
contested.” 37 C.F.R. § 41.37(c)(1)(iv). Appellant’s argument falls short of
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identifying any Examiner error. To the extent that we are to interpret
Appellant’s “all this” argument as pertaining to whether it would have been
obvious for a person of ordinary skill in the art to modify Meers in the
manner proposed by the Examiner, we disagree with such a position.
With respect to the ground of rejection over Meers as a single
reference, it is well settled that a claimed invention may be obvious even
when the prior art does not teach each claim limitation, so long as the record
contains some reason that would cause one of skill in the art to modify the
prior art to obtain the claimed invention. Beckson Marine, Inc. v. NFM,
Inc., 292 F.3d 718, 728 (Fed. Cir. 2002). In an obviousness analysis, “we do
not ignore the modifications that one skilled in the art would make to a
device borrowed from the prior art.” In re ICON Health & Fitness, Inc., 496
F.3d 1374, 1382 (Fed. Cir. 2007). This follows from the prospect that “[a]
person of ordinary skill is also a person of ordinary creativity, not an
automaton.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). As
previously discussed, we agree with the Examiner that a person of ordinary
skill in the art would have found it obvious to modify Meers to
accommodate an array with an odd number of bottles along the end wall.
Expanding a 2x4 crate to accommodate a 3x5 array of smaller beverage
bottles would have required no more than ordinary skill.
With respect to the combination of Meers and Stahl, Stahl explicitly
discloses element 24 is a bottle top receiving area. Stahl ¶ 32. Stahl
explicitly teaches that it can be stacked when loaded with bottles, id. ¶ 10. It
is readily apparent from reviewing the Figures of Meers and Stahl that the
bottles are spaced apart from each other the same distance in both the
lengthwise and widthwise direction. Meers Figs. 7–10; Stahl Figs. 1–2.
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Thus, the evidence before us inexorably leads to the conclusion that both
Meers and Stahl can be cross-stacked when loaded. There is nothing in the
Examiner’s proposed modification and combination that interferes with this
cross-stacking capability and Appellant has certainly not brought anything to
our attention to indicate otherwise.
We sustain each of the Examiner’s two grounds of rejection of
claim 16.
Claims 2–6, 17, and 19
Appellant does not argue for the separate patentability of claims 2–6,
which depend from claim 1, or for claims 17 and 19, which depend from
claim 1. We sustain each of the Examiner’s two grounds of rejection of
claims 2–6, 17, and 19. See 37 C.F.R. § 41.37(c)(1)(iv) (failure to separately
argue claims constitutes a waiver of arguments for separate patentability).
Unpatentability of Claims 8–14, and 25
over Meers and Kessler
Claim 8
Claim 8 is an independent claim that differs from claim 1, among
other things, by reciting offset handles. Claims App. The Examiner relies
on Kessler as disclosing a beverage case that features offset handles. Final
Act. 4–5.
Appellant’s argument in traverse focuses on whether a person of
ordinary skill in the art would have modified Meers with the teaching of
offset handles from Kessler. Appeal Br. 19–21. Appellant’s argument,
distilled to its essence, is that Kessler discloses a paperboard carton and
Kessler uses an offset handle configuration to situate the handles in a place
of strength where the paperboard overlaps with multiple folds. Id. at 20.
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Appellant further argues that paperboard crates are “rarely relevant” to the
design of plastic beverage crates. Id. at 21.
Appellant’s “rarely relevant” argument is wholly without merit. A
reference qualifies as prior art for an obviousness determination when it is
analogous to the claimed invention. Innovention Toys, LLC. v. MGA Entm’t,
Inc., 637 F.3d 1314, 1321 (Fed. Cir. 2011). Kessler discloses a case for
carrying beverage bottles. See Kessler col. 1, ll. 15–19. As such, it comes
from the same field of endeavor as Appellant’s invention and, therefore
qualifies as analogous art. See In re Bigio, 381 F.3d 1320, 1325 (Fed.
Cir. 2004) (explaining that prior art is analogous art for purposes of an
obviousness analysis if it is from the same field of endeavor).
It is well settled that the prior art need not be directed to the same
purpose as that disclosed by Appellant in order to support the conclusion
that the claimed subject matter would have been obvious. In re Lintner, 458
F.2d 1013, 1016 (CCPA 1972). “A reference must be considered for
everything that it teaches, not simply the described invention or a preferred
embodiment.” In re Applied Materials, Inc., 692 F.3d 1289, 1298 (Fed.
Cir. 2012). In the instant case, co-inventor Apps testifies that he considered
it “counterintuitive” to offset the handles of a beverage carton. Apps
Affidavit ¶ 27. However, obviousness is decided from the standpoint of the
hypothetical person of ordinary skill in the art, not the inventor. Custom
Accessories, Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 962 (Fed.
Cir. 1986). To determine patentability, a hypothetical person is presumed to
know all the pertinent prior art, whether or not the applicant is actually
aware of its existence. In re Nilssen, 851 F.2d 1401, 1403 (Fed. Cir. 1988).
Consequently, under the correct analysis, a person of ordinary skill in the art
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would have known that a beverage carton could be fitted with offset handles,
as taught by Kessler. See Kessler col. 3, ll. 28–31 (“the location of the two
hand holes allows the carton to be carried conveniently with both hands if
desired”). Thus, whether or not Mr. Apps and his colleagues considered
offset handles to be “counterintuitive,” Kessler demonstrates that it was a
known means by which a beverage carton can be carried “conveniently.”
We sustain the rejection of claim 8.
Claims 9–14 and 25
Appellant does not argue for the separate patentability of claims 9–14
and 25 apart from arguments presented with respect to claim 8 which we
have previously considered. We sustain the Examiner’s unpatentability
rejection of claims 9–14 and 25. See 37 C.F.R. § 41.37(c)(1)(iv) (failure to
separately argue claims constitutes a waiver of arguments for separate
patentability).
Unpatentability of Claim 18
over Meers, Stahl, and Kessler
Claim 18 depends directly from claim 17 and indirectly from claim 15
and adds the limitation: “wherein one of the handles is offset closer to one
of the sides of the crate and the other of the handles is offset closer to the
other of the sides of the crate.” Claims App.
In traversing this rejection, Appellant relies on the same arguments
concerning offset handles that we previously addressed in connection with
the rejection of claim 8. Appeal Br. 19–20. The same result obtains here.
We sustain the Examiner’s unpatentability rejection of claim 18.
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The Apps Affidavit
As mentioned above, Mr. Apps is a co-inventor of both Meers and the
instant application. We have reviewed his affidavit testimony in its entirely,
but do not find that it warrants a determination of patentability of the claims
before us. Basically, Mr. Apps’s current application modifies his prior work
in Meers in only two ways. First, the bottle array is increased from 2x4
to 3x5. Second, the handle is moved to an offset position on the end wall of
the crate instead of in the middle of the end wall.
Paragraph 7 of Apps’s Affidavit demonstrates that he is aware of the
wide variety of beverage bottle sizes available in the beverage packaging
industry. Apps Affidavit ¶ 7. He also demonstrates familiarity with arrays
other than 2x4 arrays. Id. He also demonstrates familiarity with the
relationship between bottle size and crate array, i.e., smaller bottles can be
disposed in a larger array. Id. Mr. Apps testifies that a typical weight
criteria for a fully loaded bottle crate is less than approximately 40 pounds.
Id. Although the claims defining the invention are not limited to any
specific size, we note that 15 one-liter bottles, as taught by Stahl, aggregates
to a combined weight of about 33 pounds.
Apps admits that 4x6 array crates can be stacked and cross-stacked.
Id. ¶ 11. Apps provides no persuasive testimony that it would be non-
obvious to design a 3x5 array that allows stacking and cross-stacking using
knowledge that it is generally known in the art for stacking crates of
differing arrays.
Thus, in the final analysis, Mr. Apps’s Affidavit is useful only for
pointing out the alleged advantages of using offset handles so that a person’s
fingers can fit between bottles during manual carriage. Id. ¶ 34. There is no
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indication in Mr. Apps’s affidavit that he was aware of Kessler’s teaching of
offset handles at the time of the invention. Mr. Apps acknowledges that
Kessler teaches the benefits of offsetting handles toward opposite side walls
so that the carton can be carried more conveniently. Id. ¶ 37. Thus, Kessler
and Mr. Apps arrived at the same conclusion on this matter. Kessler just
arrived at it about 60 years before Mr. Apps did.
Mr. Apps’s testimony does not apprise us of Examiner error.
CONCLUSION
Claims
Rejected
35
U.S.C.
§
Reference(s)/Bases Affirmed Reversed
25 112 Written Description 25
1-6, 15-17, 19 103 Meers 1-6, 15-17, 19
1-6, 15-17, 19 103 Meers, Stahl 1-6, 15-17, 19
8-14, 25 103 Meers, Kessler 8-14, 25
18 103 Meers, Stahl, Kessler 18
Overall
Outcome
1-6, 8-19, 25
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