15213948 - (D) (P.T.A.B. Feb. 20, 2020)

Wijbe Dijkstra

Patent Trials and Appeals BoardFeb 20, 2020

15213948 - (D) (P.T.A.B. Feb. 20, 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. 15/213,948 07/19/2016 Wijbe Dijkstra 107343-2 / 2L/2TU08/ED/1A 8774 24256 7590 02/20/2020 DINSMORE & SHOHL LLP 255EAST FIFTH STREET SUITE 1900 CINCINNATI, OH 45202 EXAMINER REYNOLDS, STEVEN ALAN ART UNIT PAPER NUMBER 3735 MAIL DATE DELIVERY MODE 02/20/2020 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte WIJBE DIJKSTRA ____________________ Appeal 2018-0041841 Application 15/213,948 Technology Center 3700 ____________________ Before PHILLIP J. KAUFFMAN, TARA L. HUTCHINGS, and ALYSSA A. FINAMORE, Administrative Patent Judges. FINAMORE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1–6, 8, and 16–24. We have jurisdiction under § 6(b). We REVERSE. 1 We reference herein the Specification filed July 19, 2016 (“Spec.”), Final Office Action mailed May 9, 2017 (“Final Act.”), Appeal Brief filed November 7, 2017 (“Appeal Br.”), Examiner’s Answer mailed January 12, 2018 (“Ans.”), and Reply Brief filed March 12, 2018 (“Reply Br.”). 2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Huhtamaki Molded Fiber Technology B.V. Appeal Br. 3. Appeal 2018-004184 Application 15/213,948 2 SUBJECT MATTER ON APPEAL “The present invention relates to a packaging unit for products like eggs and similar products likes kiwis and tomatoes, for example.” Spec. ¶ 2. Claim 1, reproduced below, is the sole independent claim on appeal, and is illustrative of the claimed subject matter. 1. A packaging unit comprising: a carton made of moulded pulp with a bottom part comprising compartments for individual products, and a cover part comprising top, front and rear surfaces, wherein the cover part is hingedly connected to the bottom part; and a label made of paperboard, the label comprising an extended front surface extending over the front surface of the cover part, the extended front surface comprising a groove, opening, or notch corresponding to a projection provided on the bottom part, the projection being configured to extend through the groove, opening, or notch such that a lock can be achieved between the label and the projection. Appeal Br., Claims App. REJECTIONS Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis 1–3, 8, 16–20, 22–24 103(a) Dijkstra,3 Padovani4 4 103(a) Dijkstra, Padovani, Lapp5 5, 6, 21 103(a) Dijkstra, Padovani, Misdom6 3 US 2010/0187150 A1, published July 29, 2010. 4 US 4,617,748, issued Oct. 21, 1986. 5 US 5,282,534, issued Feb. 1, 1994. 6 US 3,813,027, issued May 28, 1974. Appeal 2018-004184 Application 15/213,948 3 ANALYSIS Appellant argues the combined teachings of Dijkstra and Padovani would not have resulted in a label having an “extended front surface comprising a groove, opening, or notch corresponding to a projection provided on the bottom part, the projection being configured to extend through the groove, opening, or notch such that a lock can be achieved between the label and the projection,” as recited in independent claim 1. Appeal Br. 21–22; Reply Br. 4–6. Appellant’s argument is persuasive. The Examiner relies on Dijkstra for disclosing the disputed limitation. Final Act. 3. More specifically, the Examiner finds Dijkstra discloses providing a label on a rectangular area of cover part 3, whereby the rectangular area is formed by planar top surface 7 and planar front surface 8 of cover part 3. Id. (citing Dijkstra ¶ 61). According to the Examiner, the portion of Dijkstra’s label on front surface 8 discloses the recited “extended front surface” of the label. Id. Dijkstra’s Figure 6, reproduced below, shows planar top surface 7 and front surface 8 of cover part 3. Appeal 2018-004184 Application 15/213,948 4 Figure 6 is a perspective view of a portion Dijkstra’s packaging unit showing a closure between cover part 3 and bottom part 2. Dijkstra ¶ 56. As shown in the figure, cover part 3 includes top surface 7 and front surface 8 having opening 10 for receiving cam 6 of bottom part 2 to lock cover part 3 to bottom part 2. Id. ¶¶ 60–61, 68. The Examiner further finds Dijkstra inherently discloses that the front extended surface of the label has an opening corresponding to a projection configured to extend through the opening. Final Act. 3; Ans. 6. Particularly, the Examiner finds “the portion of the label disposed on the front surface would inherently have an opening at the location of the opening 10 in the front surface 8 in order for the locking mechanism to function as intended.” Ans. 6. The Examiner’s finding of inherency is insufficient. According to our reviewing court: Appeal 2018-004184 Application 15/213,948 5 To establish inherency, the extrinsic evidence must make clear that the missing descriptive matter is necessarily present in the thing described in the reference, and that it would be so recognized by persons of ordinary skill. Inherency, however, may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient. In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (citations and internal quotation marks omitted). The Examiner has not demonstrated that an opening is necessarily present in the portion of Dijkstra’s label on the front surface of the cover portion. Dijkstra does not disclose how much of front surface 8 the label covers. The label may or may not extend to opening 10 in front surface 8 of cover part 3. For example, providing a label that does not extend past opening 10 would eliminate the need for a corresponding opening in the label and aligning that opening in the label with opening 10 in cover part 3. Moreover, even if the label extends past opening 10, the label may or may not need an opening therein for the locking mechanism, i.e., cam 6 received in opening 10, to work properly. The label could extend over the portion of cam 6 extending through opening 10 after packaging unit 1 was closed. Such an arrangement would have advantages, such as avoiding the need to align openings in front surface 8 and the label during packaging, as well as providing a means to indicate tampering after packaging. For these reasons, the Examiner has not shown persuasively that Dijkstra discloses the disputed limitation. We, therefore, do not sustain the rejection of independent claim 1, and claims 2, 3, 8, 16–20, and 22–24 depending therefrom. The rejections of claims 4–6 and 21 suffer from the same deficiency as the rejection of independent claim 1. Final Act. 5–7. Appeal 2018-004184 Application 15/213,948 6 Consequently, for the same reasons as independent claim 1, we do not sustain the rejections of claims 4–6 and 21 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–3, 8, 16–20, 22–24 103(a) Dijkstra, Padovani 1–3, 8, 16–20, 22–24 4 103(a) Dijkstra, Padovani, Lapp 4 5, 6, 21 103(a) Dijkstra, Padovani, Misdom 5, 6, 21 Overall Outcome 1–6, 8, 16–24 REVERSED