William P. Apps et al.

Patent Trials and Appeals Board

Aug 2, 2019

14275027 - (D) (P.T.A.B. Aug. 2, 2019)

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.
14/275,027 05/12/2014 William P. Apps 13506 PUS;
67080-605 PUS1
7912
26096 7590 08/02/2019
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
EXAMINER
ELOSHWAY, NIKI MARINA
ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
08/02/2019 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 2019-000110
Application 14/275,027
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
William P. Apps and Suzanne Whitfield Clark (hereinafter
collectively ‟Appellant”)1 seek our review under 35 U.S.C. § 134(a) of the
final rejection of claims 1, 4, and 8–14. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

1 Appellant identifies Rehrig Pacific Company as the Applicant and real
party in interest. Appeal Br. 1.
Appeal 2019-000110
Application 14/275,027
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 beverage crate comprising:
a base, the base including a plurality of bottle capture
recesses defined by capture ribs on an underside of the base,
wherein the capture ribs extend along side edges of the base
outward of each of the plurality of bottle capture recesses;
a pair of opposed side walls extending upward from side
edges of the base;
a pair of opposed end walls extend upward from end edges
of the base, the plurality of bottle capture recesses on the base
are arranged in a 3x5 array, each of the end walls including a
handle extending from a first column to a second column,
wherein the handle is spaced below uppermost edges of the
first and second columns to align with tapered portions of
bottles to be carried in the crate,
wherein the crate can be cross-stacked on an identical crate.

THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Kazimierz
Apps
Hammett
US 3,106,308
US 5,405,042
US 2003/0075546 Al
Oct. 8, 1963
Apr. 11, 1995
Apr. 24, 2003

The following rejections are before us for review:
1. Claims 1, 4, and 10–14 are rejected under 35 U.S.C. § 103 as being
unpatentable over Hammett and Apps.
2. Claims 8 and 9 are rejected under 35 U.S.C. § 103, as being
unpatentable over Hammett and Kazimier.
Appeal 2019-000110
Application 14/275,027
3
3. Claims 8, 9, and 12–14 are rejected under 35 U.S.C. § 103, as
being unpatentable over Hammett, Apps, and Kazimier.2
OPINION
Unpatentability of Claims 1, 4, and 10–14
over Hammett and Apps
Claim 1
The Examiner finds that Hammett discloses the invention
substantially as claimed except for a 3x5 array, for which the Examiner
relies on Apps. Final Action 2–3. The Examiner concludes that it would
have been obvious to a person of ordinary skill in the art at the time of the
invention to configure the carton of Hammett with a 3x5 array as taught by
Apps. Id. citing In re Rose, 220 F.2d 459 (CCPA 1955). According to the
Examiner, a person of ordinary skill in the art would have done this to
accommodate a capacity of 15 bottles. Id. at 3.
Appellant argues that Hammett fails to satisfy the bottle capture recess
limitation. Appeal Br. 5. Appellant argues that Hammett’s ribs 92 to not
extend along the sides of the crate as claimed. Id.
In response, the Examiner essentially concedes that Hammett’s ribs 92
do not extend along the sides of the crate and that its bottle caps are free to
move transversely toward a side wall. Id. 3–4. However, the Examiner then
explains that:
Hammett further discloses in paragraph [0034] that “if the outer
annular ribs 92 . . . were of maximum height about a full 360°,
and if the ribs within each ring were of lesser height, the bottle
caps would be confined within circular recesses bounded by the
outer annular ribs.” This shows that, although the preferred

2 This alternative ground of rejection is set forth in the Answer as a New
Ground of Rejection. Ans. 2.
Appeal 2019-000110
Application 14/275,027
4
embodiment of Hammett teaches that the capture ribs which
define the recess do not form a closed shape, it is known to
provide a crate with capture recesses completely enclosing the
recesses (forming a closed shape).
Id. In other words, the fact that Hammett expressly departs from a
previously known configuration does not negate the fact that Appellant’s
capture recess structure is known in the prior art. Id.
Appellant submits a Reply Brief, but makes no effort to rebut the
Examiner’s position on the capture recess limitation. See generally Reply
Br. We find the Examiner’s reasoning persuasive and determine that the
Examiner’s finding of fact regarding the capture recess limitation is
supported by a preponderance of the evidence.
Next, Appellant argues that it would not have been obvious to
configure Hammett with a 3x5 array. Appeal Br. 7. Appellant argues that
the Rose case cited by the Examiner is limited to the size of lumber bundles.
Id. at 7–8.
In contrast, 3 by 5 is completely different from 4 by 6 because
the ratio of width to length is different and because the odd
number of bottles adjacent the handles leaves less room for the
user's hand between the bottle and the handle. This is explained
in the Background. The width to length ratio affects the ability
to cross stack the crates and affects whether there is enough
room along the perimeter of the base to capture the caps of the
bottles in the crate below. This problem is not the same for 4
by 6 crates. The claimed invention uses a combination of
handle structure and alignment to change the width to length
ratio in order to provide adequate bottle capture when cross-
stacked.
Id. at 8.
In response, the Examiner states that Apps is applied for teaching
a 3x5 array of bottles. Ans. 6. The Examiner relies on Hammett as teaching
Appeal 2019-000110
Application 14/275,027
5
the bottle capture structure. Id. The Examiner notes that beverage
containers can be sold in a variety of configuration arrays. Id. at 5. “It is the
examiner's position that it is within the level of ordinary skill in the art to
reduce the size of a tray (eliminating one row and one column).” Id. at 6.
The Examiner finds that a crate with an aligned 3x5 array is capable of being
cross stacked on another crate, as claimed. Id.
In reply, Appellant argues that the claims recite the ability to cross-
stack using capture ribs along the side edges, which are dependent on the
length-to-width ratio of the crate. Reply Br. 6.
Like Appellant, we question the applicability of Rose to the facts of
this case. However, although Appellant’s argument is well taken, it is not
persuasive of Examiner error.3 The concept of stacking and cross-stacking
cartons, boxes, and crates of goods for storage, display, and shipping in
commerce is hardly a new concept. An artisan must be presumed to know
something about the art apart from what the references disclose. See In re
Jacoby, 309 F.2d 513, 516 (CCPA 1962). It is well settled that the
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results. KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 416 (2007). “[T]the analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” Id. at 418.

3 We agree with Appellant that the array and cross-stacking issue is more
than just a matter of a change in size. However, the Examiner findings,
analysis, and legal conclusions are otherwise correct without taking Rose
into account. The Examiner’s reliance on Rose, therefore, amounts to no
more than harmless error.
Appeal 2019-000110
Application 14/275,027
6
In view of the teachings of Hammett and Apps, it is our opinion that
modifying the size, shape, and internal geometry of ribs, etc. on the top of
and bottom sides of a beverage crate to achieve the claimed 3x5 array in a
cross-stackable configuration entails no more than a basic understanding of
arithmetic, linear measurement, geometry, and ordinary creativity. Id. at 421
(“A person of ordinary skill is also a person of ordinary creativity, not an
automaton”). A person of ordinary skill in the art would have understood
that any array of any size can be rotated ninety degrees to yield an array that
is capable of cross-stacking, provided the spacing between bottles in the
lengthwise direction is equal to the spacing in the widthwise direction.
Appellant presents neither evidence nor persuasive technical reasoning to
rebut the Examiner’s position that modifying Hammett to have a 3x5 array
in a cross-stackable configuration requires more than ordinary skill. Ans. 6.
In view of the foregoing discussion, we determine the Examiner's
findings of fact are supported by a preponderance of the evidence and that
the Examiner's legal conclusion of unpatentability is well-founded.
Accordingly, we sustain the Examiner's unpatentability rejection of claim 1.
Claims 4 and 10
Claims 4 and 10 depend from claim 1. Claims App. These claims are
not separately argued and, therefore, fall with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv) (failure to separately argue claims).
Claim 11
Claim 11 is an independent claim that is substantially similar in scope
to claim 1 and is not separately argued. Claims App., Appeal Br. 5–9. The
unpatentability rejection of claim 11 over Hammett and Apps is hereby
sustained. 37 C.F.R. § 41.37(c)(1)(iv).
Appeal 2019-000110
Application 14/275,027
7
Claims 12–14
We do not reach the rejections of claims 12–14 over Hammett and
Apps in view of our decision to sustain the Examiner’s alternative grounds
of rejection set forth as a New Grounds of Rejection in the Answer, which is
set forth infra. See 37 C.F.R. § 41.50(a)(1) (The affirmance of the rejection
of a claim on any of the grounds specified constitutes a general affirmance
of the decision of the examiner on that claim, except as to any ground
specifically reversed).
Unpatentability of Claims 8 and 9
over Hammett and Kazimier
In view of our decision to sustain the Examiner’s rejection of claims 8
and 9 over Hammett, Apps, and Kazimier, infra, we do not reach the
Examiner’s alternative grounds of rejection of claims 8 and 9 over just
Hammett and Kazimier. 37 C.F.R. § 41.50(a)(1).
Unpatentability of Claims 8, 9, and 12–14
over Hammett, Apps, and Kazimier
Claims 8 and 9
Appellant argues claims 8 and 9 as a group. Reply Br. 1–2, Appeal
Br. 10. We select claim 8 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).
Claim 8 depends from claim 1 and adds the limitation: “having a
plurality of bottles loaded therein, each of the bottles including a body
having a middle portion of reduced diameter and a neck portion having a
bottle cap thereon, wherein the handles are aligned with the middle portion
of reduced diameter.” Claims App. The Examiner finds that Kazimier
discloses this limitation. Final Action 3, Ans. 2. The Examiner concludes
that it would have been obvious to a person of ordinary skill in the art at the
Appeal 2019-000110
Application 14/275,027
8
time of the invention to modify Hammett’s crate with bottles having a
reduced diameter that aligns with the handles as taught by Kazimier. Id.
According to the Examiner, a person of ordinary skill in the art would have
done this to transport bottles with a well-known shape and allow room for
the fingers of a handler. Id.
Appellant traverses the rejection by arguing that, although Kazimier
shows the lower edge of a handle in alignment with the reduced diameter
portion of a bottle, “this appears to be just a coincidence.” Appeal Br. 10.
This argument is not persuasive. A drawing teaches all that it reasonably
discloses and suggests to a person of ordinary skill in the art. In re
Aslanian, 590 F.2d 911, 914 (CCPA 1979); see also In re Mouttet, 686
F.3d 1322, 1331 (Fed. Cir. 2012) (explaining that a reference may be read
for all that it teaches). Furthermore,
a drawing in a utility patent can be cited against the claims of a
utility patent application even though the feature shown in the
drawing was unintended or unexplained in the specification of
the reference patent.
Aslanian, 590 F.2d at 914 (emphasis added). In any event, placing a handle
in juxtaposition to a volume of space created by the contours of beverage
containers does not strike us as requiring more than ordinary skill. See e.g.,
C.W. Zumbiel Co., Inc. v. Kappos, 702 F.3d 1371, 1387 (Fed. Cir. 2012, J.
Prost dissenting opinion) (questioning why placement of a finger pull in a
carton adjacent a void between beverage cans should be considered non-
obvious – asking: “Where else could they have put it”).
We are not apprised of Examiner error and, therefore, we sustain the
unpatentability rejection of claims 8 and 9 over Hammett, Apps, and
Kazimier.
Appeal 2019-000110
Application 14/275,027
9
Claims 12 and 13
Appellant argues claims 12 and 13 as a group. Reply Br. 1–2. We
select claim 12 as representative. 37 C.F.R. § 41.37(c)(1)(iv).
Claim 12 depends from claim 11 and adds the limitation: “having a
plurality of bottles loaded therein, each of the bottles including a body
having a middle portion of reduced diameter and a neck portion having a
bottle cap thereon, wherein the handles are aligned with the middle portion
of reduced diameter.” Claims App. As with claim 8, the Examiner finds
that Kazimier discloses this limitation and that claim 12 would have been
obvious for the same reason. Ans. 2.
Appellant, in essence, argues that Kazimier’s handle location is
irrelevant because Kazimier’s crate has four bottles across the end wall
instead of three. Reply Br. 3. Kazimier discloses a crate for holding a 4x6
array of bottles. Kazimier, Figs. 1, 2. Kazimier shows handle 21 adjacent
an inwardly directed contour of a beverage bottle. Id. Having reviewed the
graphical depictions of the crate and the contoured bottles in Figures 1
and 2, and the size and location of the handle, both horizontally and
vertically, vis-à-vis the size, shape, and location of the bottles, Appellant’s
argument lacks evidentiary support in the record before us. The “relevance”
of Kazimier’s handle location is readily apparent from viewing Figure 2 and
observing that there is more room for a user’s fingers near the inwardly
directed contour of the bottle.
Next, Appellant argues that Kazimier’s handle is spaced away from
the bottles such that the reduced diameter portion is “not a factor.” Reply
Br. 3. This argument is unpersuasive as it is well settled that “[a] reference
Appeal 2019-000110
Application 14/275,027
10
may be read for all that it teaches.” Mouttet, 686 F.3d at 1331; Aslanian,
590 F.2d at 914.
We are not apprised of Examiner error and, therefore, we sustain the
unpatentability rejection of claims 12 and 13 over Hammett, Apps, and
Kazimier.
Claim 14
Claim 14 depends from claim 1 and adds the limitation: “wherein the
crate can be cross-stacked on an identical crate.” Claims App. In traversing
the rejection, Appellant relies on the same argument regarding cross-
stacking that we previously considered and found unpersuasive with respect
to the rejection of claim 1 and find equally unpersuasive here. Appeal Br. 9.
We sustain the rejection of claim 14.
DECISION
The decision of the Examiner to reject claims 1, 4, and 8–14 is
affirmed.
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